South Africa grants the first patent naming an artificial intelligence as inventor, without examining the question

2021-07-28South Africa

South African Patent No. 2021/03242, Stephen L. Thaler, applicant, naming DABUS as inventor, national phase of PCT/IB2019/057809, acceptance published in the Patent Journal of the Companies and Intellectual Property Commission (28 July 2021)

The Companies and Intellectual Property Commission of South Africa published in its Patent Journal the acceptance of a patent application in the name of Stephen L. Thaler that names as inventor DABUS, the Device for the Autonomous Bootstrapping of Unified Sentience, an artificial intelligence system Thaler developed. The application is a national phase entry of PCT/IB2019/057809 and claims a food container based on fractal geometry. The patent records that the invention was autonomously generated by an artificial intelligence. The filing was made by a team led by Ryan Abbott, Professor of Law and Health Sciences at the University of Surrey, which has parallel cases pending in the United Kingdom, before the European Patent Office, in the United States and elsewhere. South Africa operates a registration system: the Commission checks formalities and does not examine applications for novelty or inventive step, and the Patents Act 57 of 1978 does not define inventor. Section 27(1) of that Act allows an application by the inventor or by a person acquiring from the inventor the right to apply, and section 30(4) with Regulation 22(1)(d) require the applicant to show how it acquired that right. The application form gives no declaration of how Thaler obtained the right to apply from the machine, and section 61(1)(a) permits revocation where the patentee is not a person entitled under section 27 to apply.

What it changesThe grant decides nothing. A South African patent issues on formalities and is tested only if someone applies to revoke it, so the document proves that a form naming a machine passed a clerk, not that a machine can be an inventor under any examined system. For a United States program the rule is unchanged: Section 100(f) of Title 35 of the United States Code defines an inventor as an individual, and the Office refuses applications that name a machine. What changes is the conversation. In-house counsel will be asked by executives and engineers whether the company's models can be inventors, and the answer should be ready: no, and every application involving a model needs a record of the human who conceived the claimed solution, kept as the work is done. Where a family includes a South African national phase, the inventor designation there should match the human designation used everywhere else, because an inconsistent designation invites an entitlement challenge in the one country where the question was never examined.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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