Innovations created by Artificial Intelligence, or “AI, “happen every second of the day. There exists a debate on the patentability of inventions made by AI, one of which is the Device for the Autonomous Bootstrapping of Unified Sentience or “DABUS” patent, which raises the critical question of whether an AI can be recognized as an inventor to apply for a patent. The primary issue is whether an AI machine can come under the term inventor in the existing patent laws. While the jurisdictions of the United Kingdom, the United States, and the European Union have negated the patent application, the issue remains unanswered in India. This blog, therefore, addresses the issues that will arise if such AI machines are given access to apply for patents for their innovations and how such inventors do not come under the Indian Patent Law regime.
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I) DABUS Case
The DABUS is an AI system that has claimed to be an inventor in patent applications across more than 15 countries, such as the United Kingdom, Germany, the United States of America, Australia, India, and South Africa. Dr. Stephen Thaler listed his AI system, DABUS, as the only inventor in patent applications he filed in the US, UK, India, Australia, South Africa, and the EPO, among other jurisdictions. In question were two inventions: (i) a food and beverage container for effective robotic handling and (ii) a unique light-flashing device for emergency care[1]. Although South Africa awarded the patent because of its depository system and the absence of a specified “inventor,” most patent offices denied the application since AI is not eligible to be considered an inventor under current legislation[2]. The matter, tested in several courts, has brought attention to the continuous discussion in local and international patent law about AI inventorship and patent eligibility.
This case helped to provide a pragmatic comparative analysis of the receptiveness of AI as an inventor under the domestic patent law framework of the respective countries. Dr. Stephen Thaler created the artificial intelligence system known as DABUS (Device for the Autonomous Bootstrapping of Unified Sentience)[3]. It asserts that it has developed innovative inventions independently without human assistance.[4] Legal and policy discussions over the nature of inventorship and intellectual property rights were sparked by the patent applications submitted in several jurisdictions that attempted to identify DABUS as the inventor.
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II) Indian Legal Framework
The Indian Patents Act, 1970, governs patent law in India. According to Section 6[5] of the Act, a patent application must be filed by a “person” who is either the true and first inventor or an assignee. The definition of “person” under the General Clauses Act of 1897 refers to a natural or legal entity, excluding AI systems[6]. Section 2(y)[7] defines “patentee” as a person who is granted a patent.
Section 2(1)(j)[8] an invention is “a new product or process involving an inventive step capable of industrial application.” The inventive step must involve human ingenuity, further strengthening the argument that AI cannot be granted patents under the current legal regime.
III) What are the challenges?
AI cannot possess intellectual property rights in India since it is not recognized as a legal entity by Indian law. AI cannot own property; hence, there is a legal void since patents grant the inventor exclusive rights. Human creativity in the creative process is emphasized by patent law. Who should get credit for an invention created by an AI system on its own—the AI user, the AI developer, or nobody at all? Acknowledging AI as a creator without a transparent attribution system becomes challenging[9].
Who should be the owner of the patent rights if an AI system produces a patentable invention?[10] Giving the AI’s developer or user rights could cause problems, mainly if several people work on its creation. For instance, disputes over the extent of each person’s contribution could arise, leading to legal battles and delays in the patenting process. Furthermore, who is responsible for deception or patent infringement cases is still unclear. Traditional ideas of intellectual property and innovation incentives may be challenged if AI is acknowledged as a creator. Would inventions produced by AI diminish the value of patents created by humans? This is a significant concern, as it could potentially discourage human innovation if AI-generated inventions are given the same value and recognition as those created by humans.[11] Furthermore, rules about liability, enforcement, and the commercialization of AI-driven ideas may need to be revised to permit AI inventorship.
US, UK, and EU courts have denied AI patent applications, highlighting the need for human inventors. Nonetheless, nations like Australia and South Africa have demonstrated an openness to AI inventorship. India must decide whether to follow the international position or forge its course by changing its patent rules to allow AI-driven innovation. Honoring AI-assisted inventions, in which a human contributor maintains the designation of the inventor, could address this issue while maintaining legal compliance and honoring AI’s contribution.
The DABUS patent dispute has brought to light a significant gap in India’s patent regulations regarding AI-generated ideas. The rapid evolution of AI technology necessitates an immediate reassessment of policy, even though the current framework does not recognize AI as an inventor. To maintain the integrity of its patent system and foster AI-driven innovation, India must find a way to bridge this gap. The key challenge will be the legal recognition of AI in intellectual property law in the coming years, whether through legislative amendments or judicial interpretations.
Author: Sanyam M Surana, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References:
- Rohan Despande and Karan Kamath, Patentability of inventions created by AI—the DABUS claims from an Indian perspective, Journal of Intellectual Property Law & Practice, Volume 15, Issue 11, November 2020, Pages 879–889, https://doi.org/10.1093/jiplp/jpaa146 (last accessed Jan. 29, 2025)
- Saravanan A. and Deva Prasad M., AI as an Inventor Debate under the Patent Law: A Post-DABUS Comparative Analysis, European Intellectual Property Review, Volume 47(1) pp. 26-39 (last accessed Jan. 29, 2025) doi: https://doi.org/10.1017/dap.2022.10.
[1] Ursula Smartt, “Can Robots Have Feelings? Should We Now Apologise to the AI-Beast Called DABUS and Compliment ANNs Instead?” (2024) 46(3) European Intellectual Property Review 183, 184; Wu, “Bridging the AI Inventorship Gap” (2023) 91(6) Fordham Law Review 2515, 2530, 2532.
[2] South Africa does not provide ex-ante verification, see https://www.cipc.co.za/?p=17839 [Accessed 29 January 2025]; Also see Francesca Mazzi, “The Common Law Interpretation of Statutory Language in Relation to the DABUS Case on AI Inventorship in the UK and Australia” (2022) 44(10) European Intellectual Property Review 586-594; Kenneth-Southworth and Li “AI Inventors: Deference for Legal Personality without Respect for Innovation?” (2023) 18(1) Journal of Intellectual Property Law and Practice 58, 60; The WIPO Standing Committee Report at 36.
[3] United States Patent Application Publication No US 2015/0379394 A1 (31 December 2015) <patentimages.storage.googleapis.com/94/bb/ce/f30bde27ce2873/US20150379394A1.pdf> (last accessed 29 January 2025)
[4] Thaler v The United States Patent & Trademark Office Case No. 1:20-cv-00903
[5] The Indian Patents Act, 1970, § 6
[6] General Clauses Act, 1897, Section 3(42)
3 The Indian Patents Act, 1970, § 2(y)
[8] The Indian Patents Act, 1970, § 2(1)(j)
[9] Kenneth-Southworth and Li “AI Inventors: Deference for Legal Personality without Respect for Innovation?” (2023) 18(1) Journal of Intellectual Property Law and Practice 58
[10] Saw and Chan, “Of Inventorship and Patent Ownership: Examining the Intersection Between Artificial Intelligence and Patent Law” (2023) 1 Singapore Journal of Legal Studies 27, 29-30.