Artificial intelligence (AI) is an area of advancement that continues to make headlines. Tesla’s recent announcement of its AI-powered robot, the “Optimus,” is one example of this new advancement.
AI continues to exceed the legal community’s expectations, particularly, recent AI-technology was used to file a patent for its invention of interlocking food containers. That is, the “inventor” of this new invention was AI, not a human. Although its true this shows considerable advancements in the world of AI, this poses an issue, one which requires serious legal considerations.
Patent law generally expects an inventor to be human, not robots or AI technology. Dr. Stephan Thaler created DABUS (Device for the Autonomous Bootstrapping of Unified Sentence), which is an artificial neural system, and states that DABUS was the sole inventor of the patentable invention. DABUS, not Dr. Thaler, filed its patent application in the U.S., Europe, Australia, and South Africa. Despite the unusualness of this situation, Australia and South Africa have granted this patent, however, we are still waiting for the U.S. and Europe’s decision on the matter. A critical question at the forefront of such an event is whether, under patent law, can AI technology be considered an inventor. As AI advancement continues to evolve, patent offices need to seriously review this new reality.
The art of flexibility: Australia’s approach to the definition of an “inventor”
After reviewing DABUS’ patent application, the Federal Court in Australia held that there exists no provisions which expressly exclude AI from the “inventor” definition, nor is there an actual requirement that a patent application must have a human author. Therefore, Australia’s Federal Court took a flexible approach to the question proposed earlier. This aligns quite well with the Australian Patents Act’s objective which reads:
“The object of this Act is to provide a patent system in Australia that promotes economic wellbeing through technological innovation and the transfer and dissemination of technology. In doing so, the patent system balances over time the interests of producers, owners, and users of technology and the public.”
The Federal Court also made a distinction between the terms ownership and investorship. The former indicates who has control over the patent, whereas, the later simply states who has created it. This is not an usual distinction to make. Often times the owner of an intellectual protection is not necessarily the author or creator of it. Patent applications are considered an asset and can be bought and sold similarly to that of other assets such as equipment or books of business. In its distinction, Australia’s Court emphasized that only humans can be capable of ownership, however, inventorship only requires the capacity to invent, which AI, arguably, possesses this capability.
Oh Canada: Patent law in Canada
In Canada, although the term “inventor” is mentioned in the Patent Act, it is not defined. For example, section 2 of the Act, defines an “applicant” as “an inventor and the legal representatives of an applicant or inventor.” This definition speaks to the distinction made by the Australian Federal Court between ownership and inventorship. However, nowhere in the Act does it state that an inventor must be human. This entertains the possibility that there exists a possibility for AI to be considered an inventor, however, this question has not been put forward to the courts.
Canadian courts have defined the term “inventor” in case law. When looking at this definition, reference is made to Apotex Inc v Wellcome Foundation Ltd, 2002 SCC 77 (“Apotex”) where the Supreme Court interpreted inventor to mean “the person or persons who conceived of” said invention. This decision favours a stricter interpretation on the term, implying that an “inventor” is a human, and not AI technology.
However, when looking at the purpose of Canada’s Patent Act, it is quite similar to that of Australia’s mentioned earlier. Particularly, the Act is meant to encourage innovation and economic growth in Canada. This infers that the Act is evolving as innovations, such as AI advancements continue to evolve. Therefore, it is very likely that in the future, Canada could adopt a more flexible approach, similar to the one adopted by Australia, when interpreting the definition of an “inventor.”
Do the benefits outweigh the risks?
Innovations, such as DABUS’ food container invention, is only the beginning of the surgence of AI advancements we can expect to see. However, there exists a gap between AI and AI-created innovations. It is important to note that AI technology, such as DABUS, are creativity machines. That is, this technology can participate in machine learning, processing, and can critically analyze data. As Canada’s Patent Act’s objective is to promote innovation, adopting a stricter approach on the definition of “inventor” in light of the growth in AI technology may hinder Canada’s ability to keep pace with global advancements in technology.
There are obvious advantages to granting patents to AI “inventors,” however, there are just as many risks. Expanding the definition of “inventor” can provide more invention liability loopholes to companies, for instance, Tesla’s Autopilot system. It could also confuse some other areas of intellectual property law. In addition, the law is slow in comparison to the growth of technology. That being said, it could take decades to adapt, interpret, and to clarify the role of AI technology and its impact on the Canadian legal system.
The one thing that is certain is that AI technology is here to stay and will continue to grow and develop at a rapid pace over the next 5-10 years. That being said, whether a strict or flexible approach is adopted, it is clear that we will need to continue to monitor and evaluate the impacts of AI technology and its legal implications.
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