The awkward grant of patents to artificial intelligence

Synopsis: This article elucidates why patents cannot be granted to artificial intelligence (AI) programs.


In April 2020, the South African patent office granted a patent to an artificial intelligence (AI) program called DABUS (‘Device for the Autonomous Bootstrapping of Unified Sentience).

DABUS used fractal geometry to come up with a better design for food containers that both improves grip as well as heat transfer.

However, it has to be noted that, before DABUS was finally granted a patent in South Africa, the DABUS application was been rejected by patent offices in the US, Europe and the UK.

On a similar account, last year the Indian Copyright Office registered a copyright over an artwork in the name of an artificial intelligence application called RAGHAV (Robust Artificially intelligent Graphics and Art Visualizer).

Why other countries refused to grant patent to an artificial intelligence (AI) program?

The European Patent Office (EPO) pointed out the following issues

One, the law designates a natural person as the inventor of a work in order to preserve their moral right over the invention as well as to secure for her the economic rights made available by the patent. AI does not fall under the classification of natural person.

Two, the programs are doing little more than just following the broad instructions of the humans who designed them. In order to be entitled to the economic benefits, an inventor needs to have actually performed the creative act of invention.

Three, AI still lack an autonomous will, self-awareness and personality in the way that humans have. At this point they can only mimic what passes for intelligence using clever tricks of pattern recognition and complex sentence completion.

Why AI algorithms cannot be treated as an inventor in the first place?

Firstly, Patent holders are granted a limited monopoly over their invention so that they can monetize their work and exercise the right to prosecute those who copy their inventions.

In order to be able to exercise the benefits that this legal monopoly offers, an inventor needs to have the ability to negotiate the complex commercial terms of a patent licence.

In case of patent infringement, the inventor needs to be able to understand the nature of the infringement as well as the various pros and cons of prosecuting the infringer.

Human inventors have little trouble understanding the relevant issues, and, with a little guidance from patent lawyers, are able to take appropriate decisions based on their own particular social and economic context.

Artificial intelligence algorithms, on the other hand, will find it hard, if not impossible, to even place all the relevant data points in an appropriate context.

Secondly, any patent granted to an artificial intelligence algorithm would, for all practical purposes, be exercised by the inventor of that algorithm. So, there is no point in calling the algorithm an inventor in the first place.

Thirdly, all these algorithms are little more than prediction machines designed to take information we have and use it to discover information we do not. Their abilities are constrained to generate outcomes within the narrow domains in which they are trained.

Source: This post is based on the following articles “The awkward grant of patents to artificial intelligence “published in Livemint on 27th Oct 2021.

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