28 July 2021Muireann Bolger

DABUS 'granted first patent' confirms AI project leader

South Africa has become the first country to grant a patent to an artificial intelligence, recognising AI solution DABUS as an inventor, the head of the project has confirmed.

Ryan Abbott, professor of law and health sciences at the  University of Surrey and DABUS' project lead, told WIPR that South Africa’s patent office, the Companies and Intellectual Property Commission (CIPC), issued an acceptance of the patent today, July 28.

Unlike in the US, UK, or at the European Patent Office (EPO), South Africa’s patent office, the  Companies and Intellectual Property Commission (CIPC), does not examine patent applications in a substantive way. Instead, applications are only examined for compliance that the application meets the requirements to be granted a patent.

However, Abbott said the decision may push other regimes to look again at the issue. "In other jurisdictions, we were not rejected on a substantive basis, but on a formalities basis. In the UK, for example, the application was not rejected, which occurs when there is a substantive problem with a patent, but was 'deemed withdrawn' for failure to comply with the rules associated with the filing of Form 7. South Africa does carry out a formalities examination, and issued it, as required, on the basis of the designation according the Patent Cooperation Treaty," he argued.

The notification by the  Companies and Intellectual Property Commission (CIPC) of the patent’s acceptance, following an application by physicist Stephen Thaler, was first reported by  The Times.

In July 2019, a team at the university led by Abbott filed patent applications in multiple jurisdictions that listed the AI application, Dabus, as the sole inventor of a food product and an emergency light.

A future precedent

Speaking to WIPR, Abbott predicted the decision was likely to influence other countries. “No country is likely to say that ‘because South Africa has granted a patent, then we are going to grant a patent as well’. But I do expect that courts and policymakers will feel that there is a problem with the system when one can get a patent for a perfectly good invention in one jurisdiction and not in others,” he said.

“That does not benefit a harmonised patent system or one seeking to incentivise AI development. I hope South Africa’s decision will be a precedent in the sense it shows that there is a means of protecting and encouraging AI innovation and other countries will follow its lead.”

Problems for the UK?

He pointed out that this decision could present a potential conundrum to the UK, which aspires to be a leader in AI, because companies and inventors in this space will decide to patent AI-devised inventions in South Africa and other jurisdictions which may become more open to the concept of AI as an inventor.

The breakthrough for the DABUS team comes after it faced a spate of rejected patent applications worldwide, many of which are now under appeal. In December 2019, the European Patent Office  refused the European patent applications as they didn’t meet the requirement that an inventor designated in the application has to be a human being, not a machine.

A year later, the  UK Intellectual Property Office (IPO) also held that DABUS  should not be deemed as an inventor according to sections 7 and 13 of the  Patents Act 1977. In its decision, the IPO also stated the AI could not own IP rights because it was not human.

This decision was  upheld on appeal by the  English High Court last September. Thaler appealed this decision at the  Court of Appeal of England and Wales yesterday, July 27.

Speaking about the appeal, Abbott said: “Our argument is that nowhere in the patent act does it state that the inventor has to be an ‘actual person’.”

He further contended that if the IPO’s stance is upheld by the UK courts, it could potentially deny protection to a growing class of inventions that may come to dominate innovation in the future.

In April 2020, the  US Patent and Trademark Office also  agreed that an AI can’t be named as an inventor on a patent application, rejecting an application by physicist Stephen Thaler.

Abbott’s team has filed patents that list an AI as the inventor in 12 countries over the past three years.

According to an IPO report, “ Artificial Intelligence: A worldwide overview of AI patents and patenting by the UK AI sector”, published patent applications relating to AI have risen 400% over the past decade.

In March this year the IPO published the results of a  consultation on AI and IP, promising further consultation on any legal changes that might be needed. WIPR has approached CIPC for comments .

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