Can an AI own Patent?

Introduction

An annual study from the World Intellectual Property Organization (WIPO) issued in 2019 reveals a growing number of patents connected to artificial intelligence (AI) in telecommunications, transportation, and life sciences.[1] Recently, in 2021, the South African Intellectual Property Office granted a patent for a fractal-based food container to an AI named DABUS (short for 'device for the autonomous bootstrapping of unified sentience'), which was designed by Stephan Thaler, CEO of imagination engines. However, in Europe, the United Kingdom, and the United States, identical applications for ownership of AI were rejected. South Africa's intellectual property office has come under criticism from the global intellectual property community, which has characterized the decision as a monumental blunder and miscalculation on the part of the patent registrar. The key question now is whether or not an AI can obtain a patent in its own name. Why did the South African IP office give a patent to artificial intelligence? In the following sections, it will be examined why the patent offices in other nations turned down this application and whether or not a similar patent can be granted in India.

Why South African IP Office granted such a patent?

Despite the outcry from intellectual property experts around the world, the IP office's decision to give the patent to an AI appears to be in conformity with existing government policies and the government's intention to stimulate innovation. The first applicable policy was the Republic of South Africa's Intellectual Property Policy Phase I of 2018. It signaled the start of patent reforms in the country. From 2019 to 2021, three other notable instruments have been published: the White Paper on Science, Technology, and Innovation from the Department of Science and Technology; the Presidential Commission on the Fourth Industrial Revolution; and the proposed National Data and Cloud Policy under the Electronic Communications Act 36 of 2005.

The overarching message of all of these documents is that South Africa's government wishes to boost innovation in order to address the country's socio-economic problems. There are concerns regarding low levels of innovation, lack of finance and lack of sufficient infrastructure.[2]

Why USA, UK & Europe rejected the same application?

The rejection of the patent application by all three patent offices may be traced back to the Hegelian Theory of personality. According to Hegel's personality theory, all types of property are extensions of personality, therefore intellectual property must be preserved as an extension of the author's or artist's personality. He justifies this by arguing that the creator infused the work with their personality, acquainting it with a strong individualistic and relational quality. The intellectual property laws of the United States, the European Union, and the United Kingdom have made use of the theory of personality in their laws. Their patent rules explicitly state that such laws and rules apply only to human inventors, as evidenced by the use of pronouns such as "him" and "her" in their language, among other things. Second, concepts require the element of "mental conception" in order to be patentable, which is something that only the human mind is capable of producing. Finally, inventorship gives rights to the inventor that artificial intelligence is legally not able to obtain.

Can such an application be accepted in India?

Inquiring about the viability of acquiring such an application under the Indian Patent Act, 1970 for the purpose of granting a patent to an AI, several categories come into the equation. To begin, under form 1 of the patents act, there is an application type 3b, which allows for the applicant to be either a natural person or a non-natural person, such as a small business, a startup, or other. The term 'other' leaves a lot of leeway for interpretation and can be used in a variety of ways.

Additionally, the Act lacks a defined term "inventor," but does include a definition of "patentee" in section 2(p), which states that a patentee is "the person for the time being entered on the register as the grantee or proprietor of the patent." Added to that, section 2(s) states that the term "person" includes government; the word 'includes' indicates that this definition is inclusive. When read in conjunction with Section 6, which establishes the list of people eligible to apply for a patent, these sections should lead to the establishment of a set of rules and regulations allowing for the exploration of such a possibility in India.

Furthermore, following the South African IP office's decision to grant a patent to an AI, the Indian copyright office has granted co-authorship to an AI along with its owner Ankit Sahni. The AI is called 'RAGHAV' (Robust Artificially Intelligent Graphics and Art Visualizer), after Raghav Gupta, a machine learning Engineer who created the AI in 2019 as part of a project funded by Mr. Ankit Sahni. With the co-authorship granted to RAGHAV and its owner, Mr. Sahni, India becomes the first country to recognize AI software as a co-author of a painting, 'Suryast.'[3] However, the Indian Copyright Office's decision has not gone unnoticed by the international community. Previously, the ICO rejected the application in which the AI RAGHAV was listed as the sole author of the work, but allowed it to be registered as a co-author. As a result, it could be concluded that ICO has chosen a middle path in terms of innovation while also adhering to the personality norms of the Intellectual property.

Parliamentary Standing Committee's report on 23 July 2021 made recommendations to amend the existing Patents Act and the Copyright Act to incorporate AI and AI-generated inventions and works into the existing legal framework. In light of the current COVID-19 pandemic, the Committee recognized the significance of artificial intelligence (AI) and machine learning. For the time being, no application has been filed in India to grant a patent to AI, but if one is filed, it will be very interesting to see if it is granted.

Conclusion

While it is true that developing countries such as South Africa and India are attempting to innovate, promote technological advancements and grant a patent or co-authorship to an AI appears premature at the moment. Globally, the intellectual property laws are unable to recognize an AI as the author of any intellectual property, and prior to amending such laws, it appears prudent to exclude AI from the scope of IP laws. The South African Intellectual Property Office's decision has left myriad unanswered questions, such as Is AI a person? Can the AI profit monetarily from the patent? Can the AI sue for patent infringement? In my opinion, an AI can be treated as a corporate entity for the time being if it is considered necessary, because only then, in the absence of competent provisions, can an AI be held to be the rightful owner of any Intellectual Property.

~Authored by Ekta Dixit