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The UK Supreme Court has ruled that an inventor “must be a person” or a company in order to be able to obtain a patent under the current legislation.
The court has upheld a previous decision that denied Dr Stephen Thaler the right to list his artificial intelligence (AI) algorithm DABUS as the inventor of two products – a container for food and drink and a light beacon – to obtain a patent back in 2019.
The judge said DABUS was “a machine with no legal personality” and that, therefore, Thaler “has no independent right to obtain a patent in respect of any such technical advance”.
Thaler’s case against the Intellectual Property Office (IPO) was heard in the High Court in 2020, and the Court of Appeal in 2021, with both ruled in favour of IPO. The case then went to the Supreme Court, which has now unanimously established that there is no law under which a machine can be considered a creator.
Thaler had previously tried (and failed) to obtain a similar patent in the US, where he began a similar legal battle with the US Patent and Trademark Office. The agency denied his request, stating that human beings are an “essential part of a valid copyright claim”. The US Supreme Court upheld the decision by declining to hear the case.
“[DARBUS] is not a person, let alone a natural person, and it did not devise any relevant invention,” the judge David Kitchin said in his judgment. “Accordingly, it is not and never was an inventor for the purposes of … the 1977 act.”
“We are not concerned here with a new item of tangible property produced by an existing item of tangible property. We are concerned with what appear (and which for present purposes we must assume) to be concepts for new and non-obvious devices and methods, and descriptions of ways to put them to into practice, all of which, so Dr Thaler maintains, have been generated autonomously by DABUS.”
The Supreme Court also rejected Thaler’s argument that he was entitled to apply for patents for DABUS inventions on the basis that he was the AI’s owner.
Thaler believes that DABUS is a “conscious and sentient form of machine intelligence” and told the BBC that he felt “disappointed by this decision”, which he said highlights “the ongoing clash between human and machine intelligence”.
Thaler’s lawyers added in a statement that the ruling “establishes that UK patent law is currently wholly unsuitable for protecting inventions generated autonomously by AI machines and as a consequence wholly inadequate in supporting any industry that relies on AI in the development of new technologies”.
A spokesperson for the IPO welcomed the decision “and the clarification it gives as to the law as it stands in relation to the patenting of creations of AI machines”.
The office added the case had brought forth “legitimate questions” regarding the creative agency of AI systems, which the government will continue to review.
In March, the US Copyright Office affirmed that most works generated by AI aren’t copyrightable, but clarified that AI-assisted materials qualify for protection in certain instances in which a human “selected or arranged” the contents of the work in a “sufficiently creative way that the resulting work constitutes an original work of authorship”.
Over the past year, the debate regarding AI and copyright has been brought into the forefront of public consciousness, with many famous authors including George RR Martin and John Grisham filing lawsuits against AI developers accusing them of training their algorithms with their copyrighted works.
The last issue of E+T explored these legal disputes and their consequences for the future of the technology and creative industries.
Are your AI-based software platforms becoming a legal liability?
Successful prosecutions of companies developing artificial intelligence tools on the basis of copyright infringement could have significant repercussions for this rapidly evolving area of technology.