South Africa issues world’s first patent naming AI as inventor

In this article written by Intellectual Property Magazine, Mathys & Squire partner Jeremy Smith provides his commentary in response to the recent news that the South African patent office (Companies and Intellectual Property Commission Department of Trade and Industry (CIPC)) has issued the world’s first patent for an invention that lists an artificial intelligence (AI) as the inventor and the AI’s owner as the owner of the patent.

Secured by University of Surrey professor Ryan Abbott and his team this week, the patented invention was generated by the artificial neural system DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) and created by CEO of Imagination Engines’ Stephen Thaler.

DABUS is an extensive artificial neural system that combines the memories of various learned elements to create new and complex concepts.

Inventions conceived by DABUS include an emergency warning light and a food container that improves grip and heat transfer.

The patent is the subject of ongoing proceedings including in the US, UK, Germany, Australia and at the European Patent Office.

In September 2020, England & Wales High Court Justice Marcus Smith held that AI cannot be a listed inventor on a patent.

Siding with the UK Intellectual Property Office, Justice Smith ruled that it is “quite clear from the statutory scheme contained in the UK Patents Act 1977 that – whatever the meaning of the term ‘inventor’ – a patent can only be granted to a person”.

Smith said he reached this conclusion “explicitly without considering the meaning of the term inventor” and emphasised that the wording of the ’77 Patents Act “makes clear that the holder of a patent must be a person.”

The justice concluded, “DABUS is not, and cannot be, an inventor within the meaning of the 1977 Act, simply because DABUS is not a person.”

Welcoming the win, Abbot said, “We see this issuance as a key step toward recognition of the importance of encouraging individuals and companies to make, develop and use AI to generate socially valuable innovations.”

He added, “As AI continues to advance and to increasingly perform human sorts of activities, this will result in a host of challenges and opportunities for businesses, including with respect to disputes.”

Mathys & Squire’s Jeremy Smith commented, “Whilst the grant of a patent in South Africa that names an artificial intelligence as inventor provides for attention grabbing headlines, we need to be careful not to infer too much from this occurrence. Unlike other countries, such as the UK and US, in which patent offices have concluded (and the courts have upheld) that an AI cannot be considered an inventor under current legislation, the South African patent office does not carry out substantive examination of a patent application before grant.”

He added, “Instead, potential issues with a granted patent are left to the courts, should the granted patent ever be challenged. Accordingly, the grant of the DABUS patent in South Africa is not an indication that the South African patent office has accepted that an AI can, legitimately, be a named inventor – the patent office may simply not have considered the issue.”

This article was written by Intellectual Property Magazine in July 2021.

Key contact

Jeremy Smith
Partner