http://ipkitten.blogspot.com/2021/09/dabus-ai-inventor-or-emperors-new.html
The question of whether it should be possible to name artificial intelligence (AI) code as an inventor on a patent application continues to dog patent offices and courts around the world. However, despite the global attention on the so-called “AI inventor” patent applications, we are no nearer to understanding how the AI (“DABUS”) actually goes about the process of inventing, or even if it can be said to really invent at all. Meanwhile, the main commercial players in the AI field, such as Google DeepMind, continue to navigate the patent system without apparent concern about the issue of AI inventorship.
DABUS and the Emperor’s New Clothes
The team behind the fight for an algorithm to be named as an inventor on a patent application have had some recent success. The South African patent office accepted DABUS as an inventor of a South African patent (IPKat), although it must be noted that South Africa takes a very light touch with respect to patent examination. The Australian Federal Court also found that DABUS could be named as an inventor (Thaler v Commissioner of Patents [2021] FCA 879) (currently under appeal). The US District Court, by contrast, recently found against naming an algorithm as an inventor (IPWatchDog). In the UK, we are imminently expecting the decision from the Court of Appeal (expected in September), whilst the oral proceedings in the case before the EPO are scheduled for December.
It therefore seems that the issue of AI inventorship is not going away anytime soon. However, as this Kat has argued a number of times (IPKat: here, here and here), there is currently little or no evidence that DABUS is, in fact, capable of inventing according to the normally accepted standards for inventorship. The inventor of DABUS, Dr Thaler, claims that his AI invention has extraordinary powers (for a machine). As his website explains:
So that Thaler’s artificial inventors could appreciate their creations, he equipped them with learning rules to bind memories, contained within a series of nets, together to produce not only complex concepts, but also the consequences of said concepts, what psychologists would call affective responses…In other words, feelings or sentience was the result.
So DABUS can not only invent, but has feelings and sentience? [Merpel was also particularly intrigued by Dr Thaler’s work in the ‘Journal of Near Death Studies’ (abstract), in which Dr Thaler provides an apparently “credible model of both salvation and damnation”]. If true, DABUS’s abilities should be considered an extraordinary achievement. However, DABUS and Dr Thaler have been widely ignored by the mainstream AI community. When publishing, Dr Thaler publishes on his AI creations in niche journals. As Dr Laurence Aitchison, Senior Lecturer in Machine Learning and Computational Neuroscience at the University of Bristol, comments “It would be good to see the code behind DABUS, but unfortunately this has not been made available, contrary to what would be normally expected in the field, even for commercial products”. The patent and legal community none-the-less appear willing to accept the claim of AI inventorship without it.
| The Emperor’s New Clothes |
For this Kat, the persistent preoccupation of the IP commentariat with DABUS, has parallels with the parable of The Emperors’ New Clothes. For many of us, AI is a magical black box. Very few in the IP profession or academia have the expertise to determine whether AI is or is not yet capable of AI inventorship. However, in this GuestKat’s opinion, many of us seem surprisingly willing to accept the remarkable claims of AI inventorship, on the basis of little or no evidence (IPKat: here, here and here).
Patent offices do not assess inventorship
So how has the DABUS case managed to get so far, without the expected evidence that DABUS can actually invent? The reason for this is quite simple. Patent offices do not generally assess claims of inventorship. As noted by the Board of Appeal in their preliminary opinion on whether DABUS can be named as the inventor on a EP patent application: “the issue of how the invention was made…is outside the competence of the EPO”. The legal proceedings before the patent offices and court are, at the moment, purely on the formal aspect of whether a non-human can be named as an inventor.
The question of whether the AI was actually behind the invention, and how this was achieved, also does not come under sufficiency. The patent office is only concerned with whether the claimed method or product itself is sufficiently disclosed.
Are we ignoring the real AI inventors (and does it matter)?
The DABUS team argue that AI should not be denied inventorship because doing so would stifle innovation. However, as the AI inventorship saga trundles on, AI companies continue to make truly extraordinary advances. A notable example of this is DeepMind’s AlphaFold (Jumper et al., Nature, 2021), which uses deep neural networks to accurately predict protein structure. Elucidation of protein structure has many practical uses, not least in drug design. If any AI was capable of inventing, one might think it would be AlphaFold.
AlphaFold is itself offered open-source under a Creative Commons Licence, and the code can be downloaded from DeepMind’s website. Interestingly, AlphaFold also appears to be the subject of at least one patent application (WO2021110730A1). In contrast to Dr Thaler, DeepMind is a commercial company that is clearly comfortable with simultaneous commercialisation and publication of the code behind their AI products. Furthermore, for a company with a growing patent portfolio (IPKat here and here), DeepMind appears unconcerned with the question of AI inventorship. What generally matters is who has the rights to the invention. Even the DABUS team is not arguing that AI should own IP.
In contrast to the abilities of AlphaFold, the DABUS inventions are a bit more subdued. DABUS has apparently invented a food container with a fractal surface, and a light that turns on and off in a fractal pattern (EP 18275163 and EP 18275174). It is still open to question as to whether either of these inventions are novel or inventive. Notably, the European search opinion in both cases (here and here) found the claims as originally drafted to lack novelty, and in the case of the food container, this was in view of a document from 1998.
By contrast, the achievement of AlphaFold reminds us that AI will undoubtedly be a useful tool in innovation over the coming years. However, AlphaFold also serves to highlight the apparent irrelevance of the AI inventor debate for many innovators. Once again, this Kat asks whether we could not move on from DABUS please? She suspects the Emperor has no clothes.
Further reading
The first AI inventor – IPKat searches for the facts behind the hype
EPO refuses “AI inventor” applications in short order – AI Inventor team intend to appeal
The mirage of AI invention – nothing more than advanced trial and error?
Is it time to move on from the AI inventor debate?
Content reproduced from The IPKat as permitted under the Creative Commons Licence (UK).