Most patent laws around the world make it clear that in order to apply for a patent the inventor must be a human and not a machine. The reasons given are that a human can be vested with certain rights such as ownership and the ability to transfer all or part to a successor, employment rights, the right of the public to know who the inventor is and the right to sue for infringement of the patent or to be sued.
There is no law or jurisprudence establishing that a machine has any rights that come from being an inventor and thus it cannot be named as an inventor in a patent application.
But technology has moved on from when these laws were made and artificial intelligence (AI) is now at a stage when it can create new and novel inventions which, but for the fact that it is classed as a machine, would be patentable.
Then comes along the AI tool DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) which made multiple patent applications in the UK, US and Europe, naming itself as inventor, all of which have initially failed due to DABUS not being a human.
However, its patent application in South Africa, with DABUS as the inventor, succeeded and was reported as being issued last month. Initially, this might be ground breaking news but for the fact that the South African IP Office does not examine applications and merely requires applicants to complete a filing for their invention. This means that the patent is open to attack on the basis of lack of novelty and/or inventiveness.
Notwithstanding the above we are getting closer to the time when machines/AI are seen as humans, for the purposes of a patent application, as the traditional hurdles are removed one by one over time.
“We see this issuance as a key step towards recognition of the importance of encouraging individuals and companies to make, develop and use AI to generate socially valuable innovations.