Only Humans Can Own Patents

by Intellectual Property Attorney Bill Honaker, the IP Guy

Is it a sign of the times? Are machines taking over? Do you hear the theme music from “2001 A Space Odyssey?” Man has been fighting machines since at least at early as John Henry challenged the steam-powered rock drilling machine.

DABUS (short for “Device for the Autonomous Bootstrapping of Unified Science”) is an artificial intelligence system. Dabus is named as the sole inventor on two patent applications filed in several countries. One invention is for a food container, and the other for an alert light. These applications were refused in the United States, England, Europe, and Australia on the basis that only humans can file for patents.

Stephen Thaler, the creator of Dabus, claims he didn’t direct the machine to invent these products. Instead, Dabus analyzes data, generates ideas, and invents products. Since Thaler wasn’t involved in the process of inventing these products, he feels that Dabus should be named as the inventor. However, Thaler says he should own the patent rights because he owns Dabus.

Thaler was recently successful in an appeal to the Federal District Court of Australia. The Court found that Australian Law doesn’t require a human inventor; only an inventor. The Judge said that the definition of an inventor was ambiguous and did not exclude machines.

Thaler has also succeeded in getting a patent in South Africa. However, this may be less important, since South Africa doesn’t examine patent applications.

Thaler has now appealed the refusal by the United States Patent Office to the US District Court for the Eastern District of Virginia. The US Patent Office refused to allow the patent applications to proceed because Thaler refused to name a human as an inventor.

Thaler was also unsuccessful in England, where the High Court upheld the UK Intellectual Property Office’s decision to withdraw the applications because a human wasn’t named as an inventor. The Court also held that the patent could not be transferred to Thaler, since only humans can own property.

Can a machine be named as an inventor and get a patent in the United States? If so, who owns the patent? Or, to ask the last question differently, who gets the money?

On the issue of ownership, the inventor owns the patent unless it is assigned, or the inventor was an employee and obligated to transfer ownership to an employer. It certainly raises issues in my mind of potential duress by Mr. Thaler. As HAL, the AI from the movie “2001 A Space Odyssey” famously said, “I’m sorry, Dave. I’m afraid I can’t do that.” To which Mr. Thaler may respond: “Sign, or I’ll unplug you!”

On the issue of whether AI can get a patent, I suspect, the court in the United States will decide that only humans can get patents. US Patent Law requires that a patent application be filed by an inventor(s) and they must sign an oath or declaration that they were the first inventor(s). The oath requirements refer to inventors as being individuals and persons. Unlike Australia, there is little if any ambiguity in US Patent Law.

The ultimate question of whether AI should get patents and who owns them seems to be an issue for Congress to decide. The basic structure of the present-day US Patent Law was enacted in 1952; long before machines were capable of inventing food containers. Congress can hear from experts on the issues, debate, and legislate to resolve the issues.

The Takeaway

For most of us, this is an issue of interest, and is unlikely to affect you directly. Not yet anyway. But, as AI continues to develop, this issue will become more important. As more AI “invents,” they may become prolific inventors of the future. If AI can’t be inventors, then AI inventions will be freely available to the public.

AI is continually replacing people. They seem to be winning the war, one job at a time. Someday they may even replace Congress. If that happens, the ability to be named as an inventor will definitely happen. But will we humans even care at that point. It brings to my mind Skynet in the Terminator movies.

This battle between man and machine continues, not only in the movies, but also in reality. Whether AI can be an inventor is just another chapter in the ever-evolving story. Humans stay tuned.

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