At first glance, a recently granted South African patent relating to a “food container based on fractal geometry” seems fairly mundane. The innovation in question involves interlocking food containers that are easy for robots to grasp and stack.
On closer inspection, the patent is anything but mundane. That’s because the inventor is not a human being – it is an artificial intelligence (AI) system called DABUS, as reported in the Conversation of the Quartz.
DABUS (which stands for “device for the autonomous bootstrapping of unified sentience”) is an AI system created by Stephen Thaler, a pioneer in the field of AI and programming.
The system simulates human brainstorming and creates new inventions. DABUS is a particular type of AI, often referred to as “ creativity machines” because they are capable of independent and complex functioning. This differs from everyday AI like Siri, the “voice” of Apple’s iPhones.
The patent application listing DABUS as the inventor was filed in patent offices around the world, including the US, Europe, Australia, and South Africa. But only South Africa granted the patent (Australia followed suit a few days later after a court judgment gave the go-ahead).
South Africa’s decision has received widespread backlash from intellectual property experts. Some have labelled it a mistake, or an oversight by the patent office.
Creativity machines can process and critically analyse data, learning from it. This process is known as machine learning. Once the machine learning phase has occurred, the machine is able to “autonomously” create without human intervention. As has been seen in the COVID pandemic, as just one example, AI is able to solve problems humans were unable to – and also much faster than people can.
When it came to the food container invention by DABUS, Thaler, assisted by Ryan Abbott of the University of Surrey, decided instead to list DABUS as the rightful inventor, as the invention was entirely devised by the AI. This was the start of their push for AI to be recognised as inventors the world over.
The United States Patent and Trademark Office and the European Patent Office rejected these applications in the formal examination phase. They gave three reasons. First, their respective patent laws only provide for human inventors – not AI – as indicated by the use of pronouns such as “him” and “her” in their text.
Second, ideas, for the purposes of patents, require the element of “mental conception” – something of which only a human mind is capable. Finally, inventorship comes with rights, which AI is not legally capable of possessing.
In granting the patent South Africa relied on their relevant policy reforms, essentially the Intellectual Property Policy of the Republic of South Africa Phase 1 of 2018.
It marked the beginning of patent reform in the country. Since then, from 2019 to 2021, three other notable instruments have been published: the Department of Science and Technology’s White Paper on Science, Technology, and Innovation; the Presidential Commission on the Fourth Industrial Revolution; and the proposed National Data and Cloud Policy in terms of the Electronic Communications Act 36 of 2005.