Is it legal for AI to file patents and be considered an inventor?


A US federal court ruled against providing copyright protection to art created by artificial intelligence on Friday, but plaintiff Dr. Stephen Thaler is on a broader campaign to provide intellectual property rights to AI.

The challenge of AI doesn’t just extend to copyrights on products, but patents for inventions, Ephraim Zachary Heiliczer, patent attorney at the Pearl Cohen law firm, explained to The Jerusalem Post.

Thaler is the creator of the DABUS (Autonomous Bootstrapping of Unified Sentience) artificial intelligence system, which is supposed to emulate human cognition and invention. Thaler is attempting to have DABUS recognized as an inventor.

Heiliczer said that while ChatGPT can be trained and given prompts to create, DABUS was trained and developed in such a way that Thaler told the AI to invent without any directional guidance. It created a plastic food container based on fractal geometry and a warning light for emergencies.

“These are things that are in quite different fields. He basically just told it to invent. So what’s the problem with just writing DABUS as an inventor [in patent applications?” said Heiliczer. He explained that while in some jurisdictions it hadn’t been clear up until recently, “throughout the world, there’s been a barrier of saying that a human has to be an inventor.”

Adv. & Patent Attorney, Ephraim Zachary Heiliczer, Partner IL Patent Group and IL Regulation, Standards, and Compliance Group at Pearl Cohen law firm.. (credit: TOMER JACOBSON)

Can an AI be an inventor?

Up until now, the world has been operating based on fiction when it comes to AI-assisted inventions. If one doesn’t name all inventors in a patent, one could lose the rights to the invention. Yet with more inventions having more AI development and less human input, like with drug development, the fiction in which humans are presented as the inventors may not be enough to protect the patent.

If patents can’t be properly protected, people may invest less in projects, and inventions may be shifted into trade secrets, said Heiliczer. This would disrupt the “bargain” that societies have struck with patents, that “you provide the knowledge to the world, and in return for that, we’ll give you a monopoly. Because by having the knowledge in public, then the public benefits from that and they can continue from that point.”

It could be possible to list people whose work was the basis and training for AIs to be listed as co-inventors; a principal inventor would still need to be identified, said Heiliczer. As AI is becoming more prolific and its reach more expansive, it could be more difficult to identify co-inventors. In Germany a compromise was attempted, Heiliczer related. 

“They listed Dr. Thaler, the owner and the person that trained DABUS as one of the inventors,” said Heiliczer.

Yet this doesn’t address the requirements to list all co-inventors as demanded in jurisdictions like the US, said the patent attorney. In April, the US Supreme Court declined to hear appeals by Thaler against the US Patent and Trademark Office’s refusal to issue patents for his AI, Reuters reported. Heiliczer said that the US Supreme Court has said that the only way AI can be listed as an inventor is if the law is changed by Congress. He noted that laws can take a long time to change. 

South Africa has tentatively accepted listing DABUS as a co-inventor, but major world powers like the United Kingdom, China, South Korea, and Japan have rejected AI inventors on patents.

In March, former Israeli patent commissioner Ofir Alon rejected an Israel inquiry into accepting Thaler’s arguments. Thaler filed two patents in 2019, which were rejected in 2020 and 2021. Alon had argued that AI couldn’t transfer intellectual property rights, and that accepting AIs as inventors could create policy asymmetry between Israel and other states.

Heiliczer said that it is possible that some want to protect the prestige of humans as inventors. With AI there is also the question of if one can disclose a patent sufficiently. You have a patent, you have to disclose it so other people can work on the invention,” said Heiliczer. “If you’re going to get a patent, you have to give appropriate disclosure. And with humans, then we know the person, we can talk to him, we can ask him questions. Will we necessarily be able to do that to the same level with AI?”

Heiliczer said that the amount of inventions worldwide that use AI are worth tens of billions of dollars in just the past few years. If countries like Israel don’t have adaptability, countries that do have flexibility like China may overtake other states with AI inventions.

Thaler has appealed Alon’s decision, and in a few months, a new patent commissioner is set to be appointed. Heiliczer said that it may be possible that Israel could be the first country where non-human inventors are listed in patents. 

“In Israel, it just says inventor. It doesn’t say it has to be human expressly,” said Heiliczer. “Because of Israel’s jurisprudential history, I think that there is a great opportunity for Israel to take the lead here, which would help support innovation, which is very key for us as the startup nation.”

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