back to article Australian court rules an AI can be considered an inventor on patent filings

An Australian Court has decided that an artificial intelligence can be recognised as an inventor in a patent submission. In a case brought by Stephen Thaler, who has filed and lost similar cases in other jurisdictions, Australia's Federal Court last month heard and decided that the nation's Commissioner of Patents erred when …

  1. Pascal Monett Silver badge
    FAIL

    AI can be an inventor

    Well I certainly agree - the day we have actual AI, that is.

    Right now all we have are statistical analysis machines. And we can't even say how they come to their decisions.

    That is black box computing, not AI.

    1. Anonymous Coward
      Anonymous Coward

      Re: AI can be an inventor

      Well I suppose it makes a change from an Infinite Number of Monkeys registering Patents.

      1. JetSetJim Silver badge

        Re: AI can be an inventor

        We can already have an Infinite Number of Monkeys registering copyright.

        Perhaps what we need is AI Patent Examiners, although at the moment the "training set" seems to be "apply rubber stamp marked 'Pass'"

    2. Anonymous Coward
      Anonymous Coward

      Re: AI can be an inventor

      Surely one of the tests of artificial intelligence is that we *can’t* say how it comes to its decisions. It determines its own logic based on its interpretation of what it’s been taught. It’s the same as with “natural” intelligence, you develop your own way of working through things and can’t always say how you arrived at a particular conclusion. You can verify it makes sense by working back through logic but that’s not the same as the original process.

      1. Doctor Syntax Silver badge

        Re: AI can be an inventor

        "Surely one of the tests of artificial intelligence is that we *can’t* say how it comes to its decisions."

        Does that mean a random number generator is AI?

        1. gandalfcn Silver badge

          Re: AI can be an inventor

          r/woosh

      2. gandalfcn Silver badge

        Re: AI can be an inventor

        Seems that was too difficult for the intelligentsia to fathom. I would add creativity, which is what you seem to be alluding.

    3. 2+2=5 Silver badge

      Re: AI can be an inventor

      > Well I certainly agree - the day we have actual AI, that is.

      Agreed. And all the patent examiner has to do is ring up the AI to ask it a question. If the answer is unsatisfactory then the patent should be denied (or put on hold) until such time as the question is answered.

      After all, if this DABUS is genuinely an AI then it should be able to pass the Turing test.

  2. pip25
    FAIL

    "Junk patents"?

    I think the real problem here is that such patents can be submitted and accepted by the patent system, regardless of their author. If meaningful innovation would truly be a requirement, then a machine capable of solving such real problems on its own would be a genuine asset, not simply yet another source of income for patent trolls.

  3. Ken Hagan Gold badge

    Do machines have rights now?

    So if a machine is the inventor, do the IP rights belong to the machine? Do they last for the "life" of the machine, until its next reboot, or just for the run of the program that created the invention? What if they modify the program?

    It doesn't look like the judge has thought this one through.

    1. Anonymous Coward
      Anonymous Coward

      Re: Do machines have rights now?

      And, more importantly, do we really need light emitting food containers

      1. Jimmy2Cows Silver badge
        Thumb Up

        Re: do we really need light emitting food containers?

        Yes. Yes we do.

        How else can we find our sandwiches in the dark? What...? Use the light switch!?! Are you nuts? Soooooo 20th century. Who has time for that?

        No, I haven't thought it through. No, I don't care. Give my light emitting food container!!1!One!!1!

        1. FIA Silver badge

          Re: do we really need light emitting food containers?

          Exactly!!!!

          I'm not sure what kind of chumps AC takes us all for, but who in their right mind would walk to the light switch when they can simply:

          • Get out their phone
          • Unlock it
          • Start 'BeaconSandwich'
          • Enable 'Location services' for some reason.
          • Give it access to their photos
          • Connect to the wifi
          • Connect to the OTHER wifi, as they're upstairs
          • Click 'Find MY Food'

          1. David 132 Silver badge
            Happy

            Re: do we really need light emitting food containers?

            What?!? You’re not using blockchain yet in your food container implementation?

            Luddite. Neanderthal.

    2. Anonymous Coward
      Anonymous Coward

      Re: Do machines have rights now?

      Does the AI have sufficient mental competency to sell or licence the patent to others, and to enter into contracts for said? If not, and the AI's "owner" were to monetise the invention for their own benefit, is that a case of abuse?

      If a third party makes an unlicensed used of the patent, is the AI expected to protect their claim in court? What if the AI does not have the ability to instruct a lawyer? Does the AI become a ward of court, and should all proceeds from the invention be put in a trust fund to benefit the AI and its successors?

      If not, and if everyone knows that the AI is unable (or unwilling) to licence or protect the patent, then anyone else can use it with impunity, which makes the patent worthless - assuming the AI doesn't develop these capabilities in the next 17 years.

      What a load of bollocks.

      1. Anonymous Coward
        Anonymous Coward

        Re: Do machines have rights now?

        > Does the AI have sufficient mental competency to sell or licence the patent to others

        Not necessarily a good analogy. Plenty of human inventors lack the skills to licence their products effectively. That's no disrespect to them - it's just a different skillset that they aren't practised in.

        1. Anonymous Coward
          Anonymous Coward

          Re: Do machines have rights now?

          The difference is between "competency to sell" and "license their products effectively". Most adults are competent to agree to an agreement to sell or license their patent; few can do so effectively. An "AI" (really machine learning) can't do either.

        2. Anonymous Coward
          Anonymous Coward

          Re: Do machines have rights now?

          And plenty of human inventors lack the rights to license their patents, even if they had the skills, because in many cases the rights are automatically assigned to their employer as per contract of employment. In this case, the rights to DABUS's patents would likely be held by whoever owned DABUS.

      2. Nifty Silver badge

        Re: Do machines have rights now?

        "Does the AI have sufficient mental competency to sell or licence the patent to others, and to enter into contracts for said? If not, and the AI's "owner" were to monetise the invention for their own benefit, is that a case of abuse?"

        A system to sell or licence the patent to others has just been invented. By an AI...

    3. Brewster's Angle Grinder Silver badge

      Do patent inventing algorithms dream of electric sheep, now?

      "Do they last for the "life" of the machine, until its next reboot..."

      I don't know how Australian law works, but patents are typically granted for 20 years, subject to renewal. It's copyright that depends on the lifetime of the mouse author.

    4. Doctor Syntax Silver badge

      Re: Do machines have rights now?

      And how does it open a bank account to collect the royalties or, alternatively assign the patent to a human or corporation that can?

    5. Andy J

      Re: Do machines have rights now?

      Patent rights are for a fixed duration. In the UK and most other first world nations the standard term is 20 years from the priority date. There are special terms for some pharma products. The person or company which owns the AI device would be accepted as being the owner of the patent, just as currently a company would own the patent on an invention of one of its human employees. This would be the case even if the human employee died two days after coming up with the invention.

      1. TeraTelnet

        Re: Do machines have rights now?

        Well yes, but only because the employee signed a contract containing a clause to that effect. DABUS isn't able to do that, so the situation is not quite the same.

    6. gandalfcn Silver badge

      Re: Do machines have rights now?

      Puts me in mnd of "Do Androids ....."

  4. elsergiovolador Silver badge

    Scam

    The whole patent idea has gone past its use by date. If you look through some recent patent, it has nothing to do with invention, just chancers trying to patent already patented ideas under different guises or patent obvious things.

    Now that you enable algorithmic patenting, it's not going to be long before someone will just run a script to patent everything.

    1. Anonymous Coward
      Anonymous Coward

      RSA

      The patent system was already faltering in the mid-18th century. The RSA (then, the Society for the Advancement of Arts, Manufactures and Commerce - the "Royal" prefix wasn't added until much later) was formed as an alternative to patents. People wishing to support its ideals contributed to its funds to issue financial-based awards to inventors who were prepared to share their ideas for the common good, rather than protect them with patents. It meant useful inventions could see much broader utilisation.

      In later years the RSA were instrumental in bringing about national exam boards - until then, it was the school's reputation that gave you credence, rather than your own ability. A step towards a merit-based and more egalitarian society. A long way still to go, but it was a step in the right direction. The RSA is still around and playing its part, usually behind the scenes, bringing like-minded people together to create synergies that make life better for those in greater need.

      1. Anonymous Coward
        Anonymous Coward

        Re: RSA

        "The RSA (then, the Society for the Advancement of Arts, Manufactures and Commerce - the "Royal" prefix wasn't added until much later)"

        It was actually the Society for the Encouragement of Arts, Manufactures and Commerce - just being pedantic (as it doesn't actually change anything important)!

        1. Tim99 Silver badge

          Re: RSA

          In the 1930s it was "Royal Society of Arts Manufactures and Commerce". My father was awarded two bronze medals by them (examinations in two different subjects - First equal, and second in the UK respectively); originally founded in 1754, Royal Charter granted in 1847, Albert the Royal Consort was the President 1842-1861 (his death) and is shown on the head of the medals. We still have them.

    2. HildyJ Silver badge
      Facepalm

      Re: Scam

      The company DeepMind announced last month that it's AI has predicted the shapes of nearly every protein in the human body, as well as the shapes of hundreds of thousands of other proteins found in 20 of the most widely studied organisms, including yeast, fruit flies, and mice.

      Now what's to stop them from filing patents for each one?

      Patents are out of control.

      1. eldakka Silver badge

        Re: Scam

        The company DeepMind announced last month that it's AI has predicted the shapes of nearly every protein in the human body, as well as the shapes of hundreds of thousands of other proteins found in 20 of the most widely studied organisms, including yeast, fruit flies, and mice.

        Now what's to stop them from filing patents for each one?

        To me at least, those all sound like unpatentable 'laws of nature' to me.

        Sure, if they came up with a new protein that isn't inside any existing organism they could patent it. But this sounds like an 'identification' of existing things, not an invention to me.

        I know that a few years ago there was a whole set of cases against i'd like to say Monsanto? (vague memory) about the patentability or not of genes. I think it was something to do with a cancer test or some other medical test (so maybe not Monsanto) that looked for genes that triggered some medical condition, and the company patented (or wanted to) the genes it was looking for to indicate the condition. And I thought in the end the decision was that genes, being a part of the human body, couldn't be patented because they were a natural phenomenon that was being identified (and tested for), not invented. The company could patent their method of testing (if it was new), but not the gene sequences themselves.

    3. Doctor Syntax Silver badge

      Re: Scam

      WHy bother with a script? Just send in an application for the set of everything that hasn't yet been patented.

  5. Brewster's Angle Grinder Silver badge

    "it may be perfectly reasonable to exclude those inventions that have not been devised by a human inventor."

    In which case, legislators need to the change law. The judge hasn't made a decision on the basis of what he thinks is beneficial for society. That's not his job; that's what we elect people for. His role is to determine the law. And he he has said Australian law doesn't prohibit machine-generated patents. Maybe he has erred. But if not, then it's not his fault that's allowed.

    1. Chris G Silver badge

      The judge has based his decision on his knowledge of the law without any understanding of what am AI, or indeed what this particular AI is.

      Whether the product is the result of programmed input from a human or is a truly randomly inspired creation form a smart machine that discerned a need for it's invention, something I strongly doubt.

      It seems likely the guy who brought the case in the first place is testing the legal water with a view to automating patent trolling.

    2. Michael Wojcik Silver badge

      Indeed. It's Sommerfield who's advocating "judicial activism", at least based on what's in the article.

      That's not to say that machine-generated inventions should be allowed, just that Australian law apparently does not forbid them. That's a legislative issue, not a judicial one.

      Apparently many commentators here also have trouble with that concept. (But then this is a Reg tradition: the comments on any article which mentions "AI" or machine learning must include a standard set of sophomoric claims about statistics, the Turing test, "real AI", etc., all displaying a distressing lack of understanding of the subject.)

  6. James Ashton
    Facepalm

    Judges just rule based on the law

    "Australian intellectual property lawyer Mark Summerfield has strongly criticised Justice Beach's decision on grounds that it could produce junk patents."

    Whether or not the decision produces junk patents can't be a concern for the judge unless the law says so... which it apparently doesn't. The thing to do here is not to criticise the decision but to lobby the government for a change in the law.

    1. Adelio Silver badge

      Re: Judges just rule based on the law

      If the AI "ownes" the patent theny anyone wanting to use it needs to negotiate. Is the AI "capable" of negotiating?

      If someone else is going to do that how does the AI "grant" permission for then to do the negotiation?

      1. eldakka Silver badge

        Re: Judges just rule based on the law

        If the AI "ownes" the patent theny anyone wanting to use it needs to negotiate. Is the AI "capable" of negotiating?

        If someone else is going to do that how does the AI "grant" permission for then to do the negotiation?

        Patent law doesn't require a patent holder to license their patents to others or to enter into negotiations to do so or to grant permission to others to use it. A patent holder is free to refuse to license there patent and is free to refuse to enter into any patent negotiations, they are free to just totally ignore any and all attempts by third parties to communicate with them about a patent they hold. A patent holder is free to put their patent on a shelf and do nothing with it, to not make any products based on it, to not use it in any way at all except in a 'tying up' of that invention so noone can use it during the validity period.

        Therefore what does not being able to negotiate. not being able to grant permission, have to do with anything? None of those are requirements of patent law.

        That being said, I think the law as it stands is patently (pun intended) absurd that it allows anything to register a patent. The law needs to be updated ASAP to put "natural persons" into the legislation so that only a human (and not pseduo-persons like companies) be the inventor of a patent.

      2. Anonymous Coward
        Anonymous Coward

        Re: Judges just rule based on the law

        "If someone else is going to do that how does the AI "grant" permission for then to do the negotiation?"

        chmod g+rw patent_negotiation

        I'll get my coat...

    2. boblongii

      Re: Judges just rule based on the law

      I imagine that the law doesn't say that Kangaroos can't have patents either. Or that the colour blue isn't allowed to own a car.

      The idea that the law has to exclude every negative possibility is moronic, just like this ruling.

      There is no need to change the law, just to sack this incompetent judge.

      1. Anonymous Coward
        Anonymous Coward

        Re: Judges just rule based on the law

        > The idea that the law has to exclude every negative possibility is moronic, just like this ruling.

        Ask Vyvyan from the Young Ones:

        https://www.youtube.com/watch?v=5b59Qp4bEFs&t=391s

        (6:31 to 7:25)

  7. Howard Sway Silver badge

    nothing in Australia law says the applicant for a patent must be human

    Undoubtedly true. But I guess this means that the precedent now applies to all other laws too. So you'd have to charge animals with causing road accidents, or stealing human property, prosecute them and jail them if convicted in a court of law. Would a kangaroo have the right to be judged by a jury of its' peers, 12 other kangaroos good and true? The judge may become a little impatient when the jury fails yet again to tell him their verdict.

    If the patents for flashing lights and lunchboxes that the AI allegedly invented were at all worthwhile, why didn't the guy claim to have invented them himself? I doubt that the computer would have been able to hire a lawyer and sue him.

    1. eldakka Silver badge

      Re: nothing in Australia law says the applicant for a patent must be human

      > Undoubtedly true. But I guess this means that the precedent now applies to all other laws too.

      Well, no, as the Federal Court is for Federal laws, not State laws. In Australia (like the US), states are soverign, therefore they have their own laws that the federal government has no authority over - except in those areas the constitution grants the federal government authority. Therefore this ruling only affects federal laws.

      However many laws, even federal laws as well as state laws, use 'persons' or 'natural persons' in the laws. Where a 'natural person' is defined as being an actual human being, thus excluding legal-fiction persons (i.e. corporations), and 'persons' is 'legal' persons, i.e. humans, corporations, other entities specifically blessed with personhood.

      From this article, it appears that the Australian patent legislation, a Federal law, did not include the terms 'person' or 'natural person', but used the word 'inventor' instead.

      Therefore any Federal laws - since the Federal Court is for federal laws, not State laws - that specifiy 'person' or 'natural person' are not affected, only those laws (which could be substantial) that do not specify those entities or do not have specific exclusions otherwise, could in fact be affected.

      However, it should be noted that the Federal Court is not the top-level court in Australia. It is the equivalent in the US of District Courts - although Australia is small enough to only have a single Circuit, it's not large enough to have been split up into the Circuits like in the US - and thus can be appealed to the Australian High Court which is the highest court of Australia, equivalent to the US Supreme Court, sorry, not sure what the UK equivalent is. Therefore until - and if - it is appealed and overturned in the High Court, it would set a precedent for Federal legislation, but not for State legislation.

    2. bridgebuilder

      Re: nothing in Australia law says the applicant for a patent must be human

      >why didn't the guy claim to have invented them himself?

      This.

      The whole discussion is moot since the operator of the AI can easily submit all those auto-generated "inventions" under their own name.

      Prohibiting AI-submitted patents might be a good idea for various reasons but it certainly does not solve the issue of the patent system being flooded with auto-generated applications.

    3. Sceptic Tank Bronze badge

      Re: nothing in Australia law says the applicant for a patent must be human

      I think he is trying to sell his program.

  8. Potemkine! Silver badge
    Facepalm

    To take this decision, I would tend to think this Judge lacks of any kind of intelligence, natural or artificial

  9. Anonymous Coward
    Anonymous Coward

    The ruling is both correct and shows the utter absurdity of the entire concept of "intellectual" property.

    The fix is to simply end the entire concept. Repeal patent and copyright laws. They're doing far more harm than good.

  10. Fr. Ted Crilly
    Coat

    erm

    Thing really is, Can the AI have all the legal atributes of a natural human being? In a very real sense this would be tantamount to (partly) giving the AI human atributes, in this case to 'own' interlectual property.

    I'd like to see the AI assert its rights, or indeed give instructions to legal counsel to action its rights, or for that matter assign its rights to another, agree to share the patent with another. Didnt think so,

    Also, if the bloke bringing the action on behalf of the AI has 'control' of the AI the AI would be something of a slave for bloke at his command, then surely the AI could have no rights as but if the Court has decided the right to assert interlectual property can be said to be 'owned (in part) by the AI Then what?

    The Law is an ass, but here what is needed is amendment to legislation that has been advanced past by the modern world to decide if mathmatics can be described as human. this AI is a bit of mathmatics nothing more. get your abacus out, in fact train a zoo of monkeys to get their abacuses out, wait a few hundred years and then decide if the bit of paper they write it all out on is sentient. might be a ultra low bandwidth discussion, remenber it's a principle of law not reality that is defective...

    1. eldakka Silver badge

      Re: erm

      Thing really is, Can the AI have all the legal atributes of a natural human being?

      Doesn't matter, that wasn't part of the legislation apparently. There are terms that are used in crafting laws that make a law explicitly refer to a 'natural human being', i.e. natural person. There are non-natural 'persons', not human beings, recognised in the law, such as corporations. Under the law, a corporation is a person, which is what allows artificial constructs such as corporations, clubs, trusts, businesses, etc. to enter into contracts and own property (such as patents and copyrights). Therefore if you want a law to apply only to natural human beings and exclude for example corporatoins, the phrase - or something similar, but it must be explicity specified in the legislation - 'natural person' is used.

      Unfortunately, this law used (apparently) neither 'person' or 'natural person', it seems to have used the term 'inventor' by the sounds of things without including a definition thereof that uses the terms 'person' or 'natural person'.

  11. The Mole

    Inventive?

    Surely the issue is whether the item is actually inventive?

    The definition is: "an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed"

    By definition the AI is almost certainly going to have a pool of general knowledge within which it makes connections based upon patterns (perhaps with some random permutations thrown in). Any other person (or copy of the same AI) are likely to come up with the same answer given the same inputs. If the AI can patent then the AI must be included in the category of 'skilled in the relevant art' and as copies of the AI can be made then anything one invents would be obvious to other copies of it.

    In essence the AI is just playing the classic game of lets patent "<X> on a mobile phone" where it is picking values of X at arbitrarily. The patent itself may actually be inventive and useful, but only because the human has gone from a long list of brainstormed ideas to realizing that it is a useful invention and deciding to submit the patent application.

  12. Ordinary Donkey

    Interesting thought

    So if an AI invents something can it be claimed by a human at all? I mean I don't think an AI can sign a contract...

  13. Tron Bronze badge

    Cue Charles Dickens.

    "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass."

  14. tygrus.au

    An artwork belongs to the artist not to the tools, brushes & paint they use. A typewriter was never the listed author of any book.

    Likewise, the output of computer software belongs to the user and some credit (eg. software license fees) ultimately goes to the programmers.

    Any patentable idea generated by AI should belong to the AI design team & any input by the user NOT the software/computer.

  15. Bartholomew Bronze badge

    In roughly about 20 years time when the singularity occurs this will be an interesting ruling. But until then, to anyone with enough technical clout, it would be the kind of thing you would expect to see on the first of April.

  16. ecofeco Silver badge

    Oh FFS

    Utter bollocks.

    The judge is a complete git.

  17. Brad16800

    True AI doesn't even exist yet so why would you bother. Only stuff I've seen i'd say is just machine learning. When I see actual AI that can negotiate a license for it's patent, then i'll consider this to be even the slightest of remotely possible ideas. What would they do with the royalties? Buy more RAM?

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