Advances in AI technology are increasingly creating new works with minimal human input, raising questions about ownership of such works.
This is of particular interest in the context of UK patent law, where the current position is that patent applications must name a human inventor. In the case of AI-powered inventions, in most cases, the human being who used AI to come up with such invention should be named as inventor. Identifying the inventor is important. This is because the right to own a patent, and therefore the benefit, comes from the named inventor.
Despite its current position, the question of whether AI machines can be named inventors of patents is currently under consideration in the UK Supreme Court. Thaler v Patents, Designs and Trademarks Director (Secretary).
Thaler v. Comptroller General
By way of background, the lawsuit concerns two patent applications filed in 2018 by Dr. Stephen Thaler (a food container and a flashing light), each claiming the inventor of “DABUS,” an AI machine owned and created by Dr. Thaler. is specified as The main reason given for this was that Dr. Thaler considered it illegal to name himself as an inventor and credit for an invention autonomously made by DABUS.
In 2019, both applications were rejected by the UK Intellectual Property Office on the grounds that DABUS is not an individual and therefore not an inventor under UK patent law. Following dismissal by both the High Court and the Court of Appeals, leave for appeal to the Supreme Court was granted and an oral hearing was held on March 2, 2023.
What next?
We look forward to rulings from the Supreme Court in the coming months on the following questions:
- Does UK patent law require an invention to be a named inventor if it was actually made by an AI machine?
- Similarly, does UK patent law allow patents to be granted without naming a human inventor?
- For inventions made by AI machines, are the owners, creators, and users of the AI machines eligible to patent the inventions?
Notably, in a response to a UK Intellectual Property Office consultation conducted in 2022, the government indicated that at that stage it would not change patent law to protect AI-generated inventions. However, it insisted it would continue to review the law in this area to ensure the UK patent system supports AI innovation.
It will be interesting to see if the Supreme Court’s ruling encourages legislation in this area.
