DABUS

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DABUS is an artificial intelligence (AI) system created by Stephen Thaler. It reportedly conceived two inventions.[1][2] The filing of patent applications designating DABUS as inventor has led to decisions by patent offices and courts on whether a patent can be granted for an invention reportedly made by an AI system.[2]

History in different jurisdictions[]

Australia[]

On 17 September 2019, Thaler filed an application to patent a "Food container and devices and methods for attracting enhanced attention," naming DABUS as the inventor.[3] On 21 September 2020, IP Australia found that section 15(1) of the Patents Act is inconsistent with an artificial intelligence machine being treated as an inventor, and Thaler's application had lapsed.[4] Thaler sought judicial review, and on 30 July 2021, the Federal Court set aside IP Australia's decision and ordered IP Australia to reconsider the application.[5][6] On 30 August 2021, IP Australia announced that it would appeal the Federal Court's decision.[7]

European Patent Office[]

The European Patent Office (EPO) refused two European patent applications naming DABUS as inventor on similar grounds as in the U.S. (see below).[8][9] The two EPO decisions are under appeal, as of August 2020.[10]

United Kingdom[]

Similar applications were filed by Thaler to the United Kingdom Intellectual Property Office on 17 October and 7 November 2018. The Office asked Thaler to file statements of inventorship and of right of grant to a patent (Patent Form 7) in respect of each invention within 16 months of the filing date. Thaler filed those forms naming DABUS as the inventor and explaining in some detail why he believed that machines should be regarded as inventors in the circumstances.

His application was rejected on the grounds that: (1) naming a machine as inventor did not meet the requirements of the ; and (2) the IPO was not satisfied as to the manner in which Thaler had acquired rights that would otherwise vest in the inventor. Thaler was not satisfied with the decision and asked for a hearing before an official known as the "hearing officer". By a decision dated 4 December 2019 the hearing officer rejected Thaler's appeal.[11]

Thaler appealed against the hearing officer's decision to the Patents Court (a specialist court within the Chancery Division of the High Court of England and Wales that determines patent disputes). On 21 September 2020, Mr Justice Marcus Smith upheld the decision of the hearing officer.[12] On 21 September 2021, Thaler's further appeal to the Court of Appeal was dismissed by Arnold LJ and Laing LJ (Birss LJ dissenting).[13]

United States[]

The patent applications on the inventions were refused by the USPTO, which held that only natural persons can be named as inventors in a patent application.[14][15] Thaler first fought this result by filing a complaint under Administrative Procedure Act (APA)[16] alleging that the decision was "arbitrary, capricious, an abuse of discretion and not in accordance with the law; unsupported by substantial evidence, and in excess of Defendants’ statutory authority." A month later on August 19, 2019, Thaler filed a petition with the USPTO as allowed in 37 C.F.R. § 1.181[17] stating that DABUS should be the inventor. The judge and Thaler agreed in this case that Thaler himself is unable to receive the patent on behalf of DABUS.

References[]

  1. ^ Sonnemaker, Tyler. "No, an artificial intelligence can't legally invent something — only 'natural persons' can, says US patent office". Business Insider. Retrieved 26 August 2020.
  2. ^ a b "epi's technology subcommittee on ICT's comments on CA/PL 5/20" (PDF). Epi Journal (1/2021): 10. March 2021. Retrieved 20 March 2021. (...) the purported DABUS cases where, however, the contribution of the machine has in no way been explained/reasoned about and appears spurious. It is not discussed in the DABUS specification, how the purported invention was devised. If it really was by the machine, there is no explanation to that extent in the patent specification nor has it been given throughout the procedure.
  3. ^ Thaler, Stephen (17 September 2019). "Food container and devices and methods for attracting enhanced attention (2019363177)". IP Australia. Retrieved 26 September 2021.
  4. ^ Stephen L. Thaler [2021] APO 5, Australian Patent Office (Australia).
  5. ^ Thaler v Commissioner of Patents [2021] FCA 879, Federal Court (Australia).
  6. ^ Jones, Alexandra (1 August 2021). "Artificial intelligence can now be recognised as an inventor after historic Australian court decision". ABC News. Retrieved 26 September 2021.
  7. ^ "Commissioner to appeal court decision allowing artificial intelligence to be an inventor". IP Australia. 30 August 2021. Retrieved 26 September 2021.
  8. ^ "EPO refuses DABUS patent applications designating a machine inventor". epo.org. European Patent Office. 20 December 2019. Retrieved 26 August 2020.
  9. ^ "EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor". epo.org. European Patent Office. 28 January 2020. Retrieved 26 August 2020.
  10. ^ Sandys, Amy (5 June 2020). "EPO and UKIPO to review decisions in AI inventor debate". Juve Patent. Retrieved 26 August 2020.
  11. ^ Jones, Huw (4 December 2019). "Whether the requirements of section 7 and 13 concerning the naming of inventor and the right to apply for a patent have been satisfied in respect of GB1816909.4 and GB1818161.0" (PDF). Intellectual Property Office (United Kingdom). Retrieved 26 September 2021.
  12. ^ Thaler v The Comptroller-General of Patents, Designs And Trade Marks [2020] EWHC 2412 (Patents) (21 September 2020).
  13. ^ Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 (21 September 2021).
  14. ^ "US patent office rules that artificial intelligence cannot be a legal inventor". www.theverge.com. 29 April 2020. Retrieved 26 August 2020.
  15. ^ "Artificial Intelligence can't technically invent things, says patent office".
  16. ^ Harrison, John C. (2020). "Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies". SSRN Electronic Journal. doi:10.2139/ssrn.3581233. ISSN 1556-5068. S2CID 234985031.
  17. ^ von Falck, Andreas; Dorn, Stephan (2018-07-20), "Rule 64: Language of the Statement for a declaration of non-infringement and fee for the declaration of non-infringement", Unified Patent Protection in Europe: A Commentary, Oxford University Press, doi:10.1093/oso/9780198755463.003.0256, ISBN 978-0-19-875546-3, retrieved 2021-12-07
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