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DABUS

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DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) is an artificial intelligence (AI) system created by Stephen Thaler. It reportedly conceived of two novel products — a food container constructed using fractal geometry, which enables rapid reheating, and a flashing beacon for attracting attention in an emergency. The filing of patent applications designating DABUS as inventor has led to decisions by patent offices and courts on whether a patent can be granted for an invention reportedly made by an AI system.

DABUS itself is a patented AI paradigm capable of accommodating trillions of computational neurons within extensive artificial neural systems that emulate the limbo-thalamo-cortical loop within the mammalian brain. Such systems utilize arrays of trainable neural modules, each containing interrelated memories representative of some conceptual space. Through simple learning rules, these modules bind together to represent both complex ideas (e.g., juxtapositional inventions) and their consequences as chaining topologies. An electro-optical attention window scans the entire array of neural modules in search of so-called “hot buttons,” those neural modules containing impactful memories. Detection of such hot buttons within consequence chains triggers the release or retraction of synaptic disturbances into the system, selectively reinforcing the most salient chain-based notions.

History in different jurisdictions

Australia

On 17 September 2019, Thaler filed an application to patent a "Food container and devices and methods for attracting enhanced attention," naming DABUS as the inventor. On 21 September 2020, IP Australia found that section 15(1) of the Patents Act 1990 (Cth) is inconsistent with an artificial intelligence machine being treated as an inventor, and Thaler's application had lapsed. Thaler sought judicial review, and on 30 July 2021, the Federal Court set aside IP Australia's decision and ordered IP Australia to reconsider the application. On 13 April 2022, the Full Court of the Federal Court set aside that decision, holding that only a natural person can be an inventor for the purposes of the Patents Act 1990 (Cth) and the Patents Regulations 1991 (Cth), and that such an inventor must be identified for any person to be entitled to a grant of a patent. On 11 November 2022, Thaler was refused special leave to appeal to the High Court.

European Patent Office

On 17 October 2018 and 7 November 2018, Thaler filed two European patent applications with the European Patent Office. The first claimed invention was a "Food Container" and the second was "Devices and Methods for Attracting Enhanced Attention."

On 27 January 2020, the EPO rejected the applications on the grounds that the application listed an AI system named DABUS, and not a human, as the inventor, based on Article 81 and Rule 19(1) of the European Patent Convention.

On 21 December 2021, the Board of Appeal of the EPO dismissed Thaler's appeal from the EPO's primary decision. The Board of Appeal confirmed that "under the EPC the designated inventor has to be a person with legal capacity. This is not merely an assumption on which the EPC was drafted. It is the ordinary meaning of the term inventor."

United Kingdom

Similar applications were filed by Thaler to the United Kingdom Intellectual Property Office on 17 October and 7 November 2018. The Office asked Thaler to file statements of inventorship and of right of grant to a patent (Patent Form 7) in respect of each invention within 16 months of the filing date. Thaler filed those forms naming DABUS as the inventor and explaining in some detail why he believed that machines should be regarded as inventors in the circumstances.

His application was rejected on the grounds that: (1) naming a machine as inventor did not meet the requirements of the Patents Act 1977; and (2) the IPO was not satisfied as to the manner in which Thaler had acquired rights that would otherwise vest in the inventor. Thaler was not satisfied with the decision and asked for a hearing before an official known as the "hearing officer". By a decision dated 4 December 2019 the hearing officer rejected Thaler's appeal.

Thaler appealed against the hearing officer's decision to the Patents Court (a specialist court within the Chancery Division of the High Court of England and Wales that determines patent disputes). On 21 September 2020, Mr Justice Marcus Smith upheld the decision of the hearing officer. On 21 September 2021, Thaler's further appeal to the Court of Appeal was dismissed by Arnold LJ and Laing LJ (Birss LJ dissenting).

On the 20th December 2023, the UK Supreme Court dismissed a further appeal by Thaler. In its judgment, the court held that an "inventor" under the Patents Act 1977 must be a natural person.

United States

The patent applications on the inventions were refused by the USPTO, which held that only natural persons can be named as inventors in a patent application. Thaler first fought this result by filing a complaint under Administrative Procedure Act (APA) alleging that the decision was "arbitrary, capricious, an abuse of discretion and not in accordance with the law; unsupported by substantial evidence, and in excess of Defendants’ statutory authority." A month later on August 19, 2019, Thaler filed a petition with the USPTO as allowed in 37 C.F.R. § 1.181 stating that DABUS should be the inventor. The judge and Thaler agreed in this case that Thaler himself is unable to receive the patent on behalf of DABUS. In their August 5, 2022, Thaler decision, the US Court of Appeals for the Federal Circuit affirmed that only a natural person could be an inventor, which means that the AI that invents any other type of invention is not addressed by the “who” mentioned in the legislation. For more information please visit Patent Application page.

New Zealand

On January 31, 2022, the Intellectual Property Office of New Zealand (IPONZ) decided that a patent application (776029) filed by Stephen Thaler was void, on the basis that no inventor was identified on the patent application. IPONZ determined that DABUS could not be “an actual devisor of the invention” as required by the Patents Act 2013, and that this must be a natural person as held by the previous patent offices above. The High Court of New Zealand confirmed the decision in 2023.

South Africa

On 24 June 2021, the South African Companies and Intellectual Property Commission (CIPC) accepted Dr Thaler's Patent Cooperation Treaty, for a patent in respect of inventions generated by DABUS. In July 2021, the CIPC released a notice of issuance for the patent. It is the first patent granted for an AI invention.

References

  1. ^ US 10423875, Thaler, Stephen L., "Electro-optical device and method for identifying and inducing topological states formed among interconnecting neural modules", published 2019-09-24 
  2. ^ Thaler, Stephen (2021). "Vast Topological Learning and Sentient AGI". Journal of Artificial Intelligence and Consciousness. 8: 81–111. doi:10.1142/S2705078521500053. S2CID 233176224. Retrieved 4 May 2023.
  3. George, Alexandra; Walsh, Toby (26 May 2022). "Artificial intelligence is breaking patent law". Nature. 605 (7911): 616–618. Bibcode:2022Natur.605..616G. doi:10.1038/d41586-022-01391-x. PMID 35610374. S2CID 249043999.
  4. Weber, Tomas (4 April 2023). "The inventor who fell in love with his AI". The Economist. Retrieved 25 May 2023.
  5. Sonnemaker, Tyler. "No, an artificial intelligence can't legally invent something — only 'natural persons' can, says US patent office". Business Insider. Retrieved 26 August 2020.
  6. ^ epi (March 2021). "epi's technology subcommittee on ICT's comments on CA/PL 5/20" (PDF). epi Information (1/2021): 10. Retrieved 25 January 2023. the purported DABUS cases where, however, the contribution of the machine has in no way been explained/reasoned about and appears spurious. It is not discussed in the DABUS specification, how the purported invention was devised. If it really was by the machine, there is no explanation to that extent in the patent specification nor has it been given throughout the procedure.
  7. Comer, Anna (2021). "AI: Artificial Inventor or the Real Deal". North Carolina Journal of Law & Technology. 447: 447–487.
  8. Boltuc, Piotr (2022). "Philosophy and Computing Conference at IS4SI 2021". The 2021 Summit of the International Society for the Study of Information. p. 149. doi:10.3390/proceedings2022081149.
  9. Mikki, Said (2023). "Artificial General Intelligence and Noncomputability: A Dynamical Framework". Journal of Artificial Intelligence and Consciousness. 10: 71–101. doi:10.1142/S2705078522500163. S2CID 256686011.
  10. Thaler, Stephen (17 September 2019). "Food container and devices and methods for attracting enhanced attention (2019363177)". IP Australia. Retrieved 25 January 2023.
  11. Stephen L. Thaler [2021] APO 5, Australian Patent Office (Australia).
  12. Thaler v Commissioner of Patents [2021] FCA 879, Federal Court (Australia).
  13. Jones, Alexandra (1 August 2021). "Artificial intelligence can now be recognised as an inventor after historic Australian court decision". ABC News. Retrieved 26 September 2021.
  14. Commissioner of Patents v Thaler [2022] FCAFC 62, Federal Court (Full Court) (Australia).
  15. Commissioner of Patents v Thaler [2022] HCATrans 199, High Court (Australia).
  16. ^ European Patent Office (21 December 2021). "J 0008/20 (Designation of inventor/DABUS) of 21.12.2021". Retrieved 24 May 2023.
  17. Sandys, Amy (5 June 2020). "EPO and UKIPO to review decisions in AI inventor debate". Juve Patent. Retrieved 26 August 2020.
  18. Jones, Huw (4 December 2019). "Whether the requirements of section 7 and 13 concerning the naming of inventor and the right to apply for a patent have been satisfied in respect of GB1816909.4 and GB1818161.0" (PDF). Intellectual Property Office (United Kingdom). Retrieved 26 September 2021.
  19. Thaler v The Comptroller-General of Patents, Designs And Trade Marks [2020] EWHC 2412 (Patents) (21 September 2020).
  20. Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 (21 September 2021).
  21. Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49 (20 December 2023).
  22. "US patent office rules that artificial intelligence cannot be a legal inventor". www.theverge.com. 29 April 2020. Retrieved 26 August 2020.
  23. "Artificial Intelligence can't technically invent things, says patent office".
  24. Harrison, John C. (2020). "Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies". Yale Journal on Regulation Bulletin. 38: 37-47. SSRN 3581233.
  25. von Falck, Andreas; Dorn, Stephan (2018-07-20), "Rule 64: Language of the Statement for a declaration of non-infringement and fee for the declaration of non-infringement", Unified Patent Protection in Europe: A Commentary, Oxford University Press, doi:10.1093/oso/9780198755463.003.0256, ISBN 978-0-19-875546-3
  26. Valinasab, Omid (2023). "Big Data Analytics to Automate Disclosure of Artificial Intelligence's Inventions" (PDF). U.S.F. Intell. Prop. & Tech. L.J. 133 (2023). 2 (133). doi:10.2139/ssrn.4087752.
  27. Luiten, Mark (31 January 2022). "[2022] NZIPOPAT 2". Intellectual Property Office of New Zealand. Retrieved 7 April 2022.
  28. Stevens, Rick (21 March 2023). "Artificial Intelligence: You have to be a real person to be an inventor, court rules". The New Zealand Herald.
  29. Oriakhogba, Desmond (2021). "Dabus Gains Territory in South Africa and Australia: Revisiting the AI-Inventorship Question". South African Journal of Intellectual Property Law. 9: 87–108. doi:10.47348/SAIPL/v9/a5. S2CID 245993919. SSRN 3998162.

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