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THE INVENTORSHIP DILEMMA: ANALYSING THE CASE OF AI DABUS

- Bhoomika Shah & Pranali Vyas


INTRODUCTION

With the inception of advanced technology, artificial intelligence is seen to have tapped into the sphere of innovations and creations. Series like Black Mirror, West World among others give a different perspective to the onset of the AI era. Stating the cliché, technology can be a boon as well as a bane, well for majority of the creative sector it serves as the latter. The recent Netflix documentary, ‘The Social Dilemma’ has conditioned us to the idea of Surveillance Capitalism and AI taking over the world, however it plays out to be much more alarming than it sounds.

Artificial Intelligence has opened up a wide scope for debates and disputes in the course of creating inventions, leaving behind the conventional and traditional inventors, AI is all set to take its stand and run this race of inventiveness with us.

Analysing the scenario post the recent developments in technology, we have witnessed a substantial progression in relation to identification of an “owner” and “inventor” in patent disputes.

This helps build the foundation of our take on the “AI DABUS” case. The on-going debate centred around the acknowledgement of an AI as the inventor itself gives path to varied perspectives, both negative and positive. Therefore, this article does not particularise any one stand, but instead provides an analysis on both the aspects, so as to assist in the deduction of a favourable solution which is integral from the futuristic perspective.

BACKGROUND

Invented by Dr Stephen Thaler, AI DABUS(Device for the Autonomous Bootstrapping of Unified Sentence) somewhere in late 2018 created 2 new inventions for which Dr. Stephen filed respective patent applications in the EU:

1] EP 18 275 163-Food container

2] EP 18 275 174- Flashlight

Upon request of the European Patent Office, Dr. Stephen filed a separate designation indicating DABUS as the “inventor” of both the applications.

DABUS is considered to be a “connectionalist AI” hence justifying Dr. Thaler’s statement wherein he considers himself to be the employer of DABUS as well as successor in title and consequently owner of the rights to patent DABUS’s inventions.

JUDGMENT

Initially, Thaler approached the US and the UK patent offices to register the patent with “DABUS” designated as the inventor. But Thaler’s requests were rejected by both the offices on the ground that it was imperative for the inventor to be a “natural person”. By the term “natural person”, it was implied that the inventor must be a real person and not a mechanism personified with human capabilities.

This purported to be a necessary condition for the acquisition of the patent. Mere assignment of a name to something doesn’t make it a natural person. To validate their reason, they further added that “Patents provide a variety of enabling personal rights to the holder, which cannot be exercised by an AI and neither can the AI account for any legal consequences accompanied by the possession of the patent. Thus, making it incapable of being designated as an “Inventor”.

Despite the rejection, Thaler was resilient to this reasoning, subsequently approaching the EPO (European Patent Office) to consider his request owing to the future advancements in the field of technology. However, the EPO rejected Dr. Thaler’s reasoning stating that the applicant’s designation of “inventor” did not envision the requirements in Art. 81 and Rule 19(1) of the EPC.[1]

THALER'S CONTENTIONS

Dr. Thaler was not satisfied by the unreasonable negligence demonstrated by the respective patent offices with respect to granting “DABUS” the status of an inventor. His contentions focus around the following points:

1] Thaler purported that DABUS was not trained by any natural person including himself to conduct any task. It followed the process of automated learning and unlearning which made it an independent inventor. Hence, should be eligible for acquiring a patent by itself.

2] Thaler, pointed out a significant aspect in law when he stated that a law, in this case the patent law serves the sole purpose of ensuring the authenticity of innovation and upholding the spirit of creation which should not wrongly acquired by any person. Therefore, the restriction on the invention in the act was only to corporate inventors but did not specifically make any exclusion of an autonomous machine. The absence of such specification makes it crucial for the EPO to accept inventions which is not particularly made by a natural person, upholding the spirit of creativity.

3] If companies consider AI innovations detrimental to human creativity then they must not use AI themselves. But in reality, the question raised is that, if any multinational company gets acquainted to an AI’s performance not only competing with human creativity but actually outdoing it with complete efficiency, wouldn’t they want to use such a machine for R&D? Hence, any company which may hold the abovementioned view should not turn hypocritical when it comes to business profit maximisation.

DETRIMENTAL TO HUMAN CREATIVITY

Human imagination and creativity are one of the distinctive characteristics of humans, it is the most remarkable trait of all and the question of AI supplanting it comes as a nightmare.

Visualising this particular case from the lens of an individual creator, the process of manual invention undergoes some tedious labour for its execution. This involves strenuous efforts not only physical but also mental. Exploration and combination is of essence when creating something from scratch. Therefore, the output generated from this vigorous procedure tends to have higher value owing to the bash of uniqueness which one strives to incorporate. Thus, in turn, elevating the value of the patent accorded to the aforesaid invention. Moreover, the fact that not every individual’s creative abilities can equate to someone who inherently possess them, makes it all the more likely for those on the less fortunate side to exploit the unique innovation through the acquired patent, making it a lot more valuable.

Whereas in the case of an AI the invention, is not subjected to a vigorous process making the invention comparatively more effortless. An AI is not a real person, thus enabling it to create automatically, by means of automated learning. Some might argue that automated learning is the sole effort of an AI, however, that argument fails for the mere reason that AI learns what we feed it. This concept can be understood by means of comparing it to highly specified ads. Eg. When we search the net for a particular thing, or like something on social media, the algorithm takes that into account along with the traces that we leave behind, a.k.a. cookies. With this data as an input, the AI calculates our likes and dislikes and keeps track of our interests. This is how we come across such specific advertisements and help the AI learn and grow more. Subsequently not only diminishing the value of the patent which it strives to acquire but, in hindsight, also disregards the manual hardwork of an individual.

The evolution of the AI outdates the human efforts by increasing its self- reliance, leaving no scope for humans to explore their inventive skills, leading to the deterioration of human potential. This shift in work execution will sweep mankind off its essence leaving them completely futile.

Drawing parallels to the ‘Monkey Selfie Case’[2], wherein a British photographer David Slater had been made party to a dispute arising out of a copyright claim, for a photograph clicked by Naruto (the monkey) of himself. He also got into a spat with Wikipedia where they claimed the image to be in public domain, reason being given, “Monkeys cannot claim copyright.”

Later in 2015, PETA sued David Slater on behalf of Naruto and asserted copyright over the photograph. They went on to the extent of claiming that the shot, “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto.”In January 2016, the trial judge dismissed the action on the basis that even if Naruto had taken the pictures by “independent, autonomous action,” the suit could not continue as animals do not have standing in a court of law and therefore cannot sue for copyright infringement.[3]

Considering the contentions and judgement of the above-mentioned case, it would be sufficient to establish a similar stance in the present matter involving AI DABUS and its “invention”.

WHY CAN’T AN AI ACQUIRE A PATENT BY ITSELF?

Two of the most imperative considerations required to ascertain the scope of inventorship are namely “Personal rights” and the “Legal consequences”[4]. The judgement declared by EPO already highlights these two necessary conditions for the eligibility of acquiring a patent. But to further comprehend the imposition affixed to the patent laws, one must understand the meaning of the two expressions.

“Personal rights” with reference to a patent holder amounts to the right to enter into contracts, licensing, sell, distribute, transfer, etc. for monetary benefits.

“Legal consequences” with reference to a patent holder amounts to the ability to sue for infringement, plagiarism or wrongful use of invention by another person.

From the above explanation itself, one must be able to gather why an AI is incompetent to be made an “inventor”. With all due respect to patenting laws, it becomes imperative to conclude that moral contentions alone, do not prove sufficient to back an AI driven invention. These peculiar aspects of practicality need to be taken into account for which AI cannot be equated to the status of a natural person. This narrows it down to the fact that even if an AI be made an inventor, it will be incapable for it to individually exploit the “personal rights” neither will it be able to impose any legal consequences by itself. Eventually, rendering the patent inefficacious.

On the contrary, the Artificial Inventor Project team believes that the existing laws and methods followed by the EPO and UKIPO, which enable humans/applicant to falsely claim inventorship for the sake of registering their patent is detrimental to the actual owner i.e. the AI, this indirectly amounts to devaluation of the creative rights of the original inventor.

NECESSITY TO EFFECT CHANGE IN EXISTING LAWS

The laws of a particular state build the foundation structure for the righteous conduct expected from its citizens. When a law is implemented, everyone religiously follows it subconsciously taking it for a given, that the laws implemented are fruitful for the prosperity of the nation as a whole.

The blind faith in the constituted laws embodied in every citizen makes it crucial for the law makers to alter and amend the laws, from time to time, making it flexible to change. The laws must have a dynamic nature so as to adapt to the futuristic needs of its citizens.

Abbott believes that if the law and policies are not in tandem with technological advances, humanity as a whole will suffer as a consequence. He believes, “The risk is we won’t have adequate incentives to develop inventive AI, and society will miss out on important innovations that in some cases, AI may be better at generating than a person. Particularly long term, as AI begins to do a better job of research than people, we risk not having the right frameworks in place to benefit from that socially.”[5]

In today’s day and age, technology is making fast paced advancements, the effect of which is pervasively acknowledged over the globe. This calls for the dire need for amending the laws over time to incorporate the effects of technology. To give a brief analogy, the EU Cyber Security Act was initiated to ascertain the crimes related to computers and computer security, which could not be deduced by the former conventional laws. In the same manner, the growing significance of the AI systems calls for a well-established amendment which is not detrimental to human creativity but at the same time corresponds to the effects of Artificial intelligence.

This gradual change is definitely the need of the hour owing to the fact that laws are followed by every industry including all shades of businesses. Industries are increasing their reliance on technology for rapid production and sales. Hence, if technology related laws are not skilfully implemented, the business world will be the first to suffer. If the laws remain out dated, gradually, no industry will be able to thrive in the long run, leading to a lull in the global economy.

[1] Grounds for the decision, EUROPEAN PATENT OFFICE (Jan. 27, 2020), https://register.epo.org/application?documentId=E4B63SD62191498&number=EP18275163&lng=en&npl=false.

[2] Naruto v. Slater, No. 16-15469 (9th Cir. 2018)

[3] Andres Guadamuz, Can the monkey selfie case teach us anything about copyright law?, WIPO ( Feb., 2018), https://www.wipo.int/wipo_magazine/en/2018/01/article_0007.html.

[4] Art. 58, EUROPEAN PATENT CONVENTION.

[5] Thomas Macaulay,Why AI systems should be recognized as inventors, THE NEXT WEB (Feb. 17, 2020, UTC 21:41), https://thenextweb.com/neural/2020/02/17/why-ai-systems-should-be-recognized-as-inventors/.

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