At first glance, a recently granted South African patent referring to a “food container based on fractal geometry” seems fairly mundane. The innovation in query involves interlocking food containers which can be easy for robots to know and stack.

On closer inspection, the patent is anything but mundane. That’s since the inventor shouldn’t be a human being – it’s a synthetic intelligence (AI) system called DABUS.

DABUS (which stands for “device for the autonomous bootstrapping of unified sentience”) is an AI system created by Stephen Thaler, a pioneer in the sector of AI and programming. The system simulates human brainstorming and creates recent inventions. DABUS is a specific kind of AI, also known as “creativity machines” because they’re able to independent and sophisticated functioning. This differs from on a regular basis AI like Siri, the “voice” of Apple’s iPhones.

The patent application listing DABUS because the inventor was filed in patent offices around the globe, including the US, Europe, Australia, and South Africa. But only South Africa granted the patent (Australia followed suit a couple of days later after a court judgment gave the go-ahead).

South Africa’s decision has received widespread backlash from mental property experts. Some have labelled it a mistake, or an oversight by the patent office. However, as a patent and AI scholar whose PhD goals to deal with the gaps in patent law – as I examine on this pre-print article – created by AI inventorship, I suggest that the choice is supported by the federal government’s policy environment in recent times. This has aimed to extend innovation, and views technology as a approach to achieve this.

Creativity machines

Creativity machines can process and critically analyse data, learning from it. This process is referred to as machine learning. Once the machine learning phase has occurred, the machine is in a position to “autonomously” create without human intervention. As has been seen within the COVID pandemic, as only one example, AI is in a position to solve problems humans were unable to – and likewise much faster than people can.

Over the years there have been many sorts of creativity machines. Prior to DABUS, Thaler built one other AI which created novel sheet music, and which he credited with inventing the cross-bristle toothbrush design. He filed a patent for the cross-bristle design, and it was granted – proving AI’s ability to generate truly novel inventions that meet the standards for patents. However, Thaler listed himself, somewhat than the AI, because the inventor at the moment.

When it got here to the food container invention by DABUS, Thaler, assisted by Ryan Abbott of the University of Surrey, decided as a substitute to list DABUS because the rightful inventor, because the invention was entirely devised by the AI. This was the beginning of their push for AI to be recognised as inventors the world over.

The United States Patent and Trademark Office and the European Patent Office rejected these applications within the formal examination phase. They gave three reasons. First, their respective patent laws only provide for human inventors – not AI – as indicated by way of pronouns resembling “him” and “her” of their text. Second, ideas, for the needs of patents, require the element of “mental conception” – something of which only a human mind is capable. Finally, inventorship comes with rights, which AI shouldn’t be legally able to possessing.

Much to the surprise of the worldwide community, South Africa’s patent office, the Companies and Intellectual Property Commission, granted the patent, recognising DABUS as an inventor. It has not yet explained its reasons for doing so.

This patent was published in July 2021 within the South African Patent Journal, with major news agencies including The Times reporting on the matter.

The granting of the DABUS patent in South Africa has received widespread backlash from mental property experts. The critics argued that it was the wrong decision in law, as AI lacks the crucial legal standing to qualify as an inventor. Many have argued that the grant was simply an oversight on the a part of the commission, which has been known within the past to be lower than reliable. Many also saw this as an indictment of South Africa’s patent procedures, which currently only consist of a proper examination step. This requires a check box type of evaluation: ensuring that each one the relevant forms have been submitted and are duly accomplished.

Critics feel that if South Africa as a substitute had a substantive search and examination system in place, the DABUS patent application would have been rejected.

I disagree.

Enabling policy environment

While it is feasible that the commission erred in granting the patent, South Africa’s policy environment in recent times suggests otherwise.

The first relevant policy was the Intellectual Property Policy of the Republic of South Africa Phase I of 2018. It marked the start of patent reform within the country. Since then, from 2019 to 2021, three other notable instruments have been published: the Department of Science and Technology’s White Paper on Science, Technology, and Innovation; the Presidential Commission on the Fourth Industrial Revolution; and the proposed National Data and Cloud Policy by way of the Electronic Communications Act 36 of 2005.

The core message of all these documents is that South Africa’s government wants to extend innovation to resolve the country’s socio-economic issues. There is obvious worry about issues resembling poor innovation levels, lack of funding and lack of suitable infrastructure which is crucial to essentially capitalise on the fourth industrial revolution.

Given the policy environment and the vast potential of AI, the granting of the patent is smart. Perhaps this may change into a strategic masterclass by the South African office which is able to result in a rather more revolutionary nation.

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