Can robots have feelings? Should we now apologise to the AI-beast called DABUS and compliment ANNs instead?

Smartt, Ursula (2024) Can robots have feelings? Should we now apologise to the AI-beast called DABUS and compliment ANNs instead? European Intellectual Property Review, 46 (3). pp. 183-188. ISSN 01420461 (In Press)

Abstract

The article looks at two judgments with comparable subject matters, decided within a month of each other towards the end of 2023 by United Kingdom (UK) courts: the UK Supreme Court appeal in Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49 and the High Court ruling in the Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) (Re ANNs). These cases ask the question whether an artificial intelligence (AI) system can be named as an inventor and whether a patent application can proceed without naming a human inventor. The Dr Stephen Thaler matter has been considered in various semblances before courts in Australia, Germany, Israel, New Zealand, South Africa, South Korea and the US. Dr Thaler’s ‘Device for the Autonomous Bootstrapping of Unified Sentience’ (DABUS) was also considered at the European Patent Office (EPO) and by the South African Patent Office (SAPO). Except for South Africa, the overall message from the various global courts has been wholly negative. The decision from the UK Supreme Court in Thaler is the latest decision, providing no surprises. The UKSC held, in agreement with other courts around the world (except South Africa), that an AI machine, such as DABUS, could not own any rights in the alleged inventions and therefore there was no mechanism by which these could pass to Dr Thaler. The core of the UKSC’s decision in Thaler revolved around two patent applications filed by Dr Stephen Thaler, where the alleged ‘inventor’ of the products and processes is an AI system named DABUS. The justices of the Supreme Court unanimously held that an AI system cannot be recognised as an inventor under the current legislative framework of the Patents Act 1977. In his leading judgment, Lord Kitchin emphasised that an ‘inventor’ must be a natural person. Since DABUS, a non-human entity, created the inventions autonomously, it did not fit within the legal definition of an inventor. Lord Kitchin’s examination of the role and status of DABUS in the Thaler case is particularly insightful: the crux of the court’s decision hinged on the interpretation of the term ‘inventor’ within the 1977 Act which defines an inventor as ‘the actual deviser of the invention’. This interpretation adheres to the traditional understanding of inventorship, which inherently links human intellect and creativity to the concept of invention. The article compares the Thaler judgment with the High Court ruling in the Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch), where Sir Anthony Mann permitted the patentability of Artificial Neural Networks (ANN) (pending an appeal).

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