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At first glance, a recently issued South African patent for a “food container based on fractal geometry” seems rather trite. The innovation in question is to nest food containers that are easy to grab and stack for robots.
On closer inspection, the patent is anything but trivial. This is because the inventor is not a human being – it is an artificial intelligence (AI) system called DABUS.
DABUS (which stands for “Unified Sensitivity Autonomous Bootstrapping Device”) is an AI system created by Stephen Thaler, a pioneer in the field of AI and programming. The system simulates human brainstorming and creates new inventions. DABUS is a special type of AI, often referred to as “creativity machines” because they are able to operate independently and in complex ways. It differs from everyday AI like Siri, the “voice” of Apple iPhones.
The patent application mentioning DABUS as inventor has been filed in patent offices around the world, including the United States, Europe, Australia and South Africa. But only South Africa granted the patent (Australia followed suit a few days later after a court ruling gave the green light).
South Africa’s decision has been widely criticized by intellectual property experts. Some have called it an error or omission by the patent office. However, as a patent and AI specialist whose doctorate aims to fill the patent law loopholes created by the inventor of AI, I suggest that the decision is supported by the policy environment of the government these last years. This was aimed at increasing innovation and sees technology as one way to achieve this.
Creativity machines
Creativity machines can process and critically analyze data, learning from it. This process is known as machine learning. Once the machine learning phase is over, the machine is able to create “autonomously” without human intervention. As seen in the COVID pandemic, as an example, AI is able to solve problems that humans couldn’t – and also much faster than people can.
Over the years, there have been many types of creativity machines. Before DABUS, Thaler built another AI which created new musical scores and which he attributed to inventing the cross bristle toothbrush design. He filed for a patent for the crosshair design, and it was granted – proving AI’s ability to generate truly new inventions that meet patent standards. However, Thaler signed up, rather than AI, as the inventor at that time.
Regarding the invention of food containers by DABUS, Thaler, assisted by Ryan Abbott of the University of Surrey, instead decided to list DABUS as the legitimate inventor, as the invention was entirely engineered by AI . This was the start of their campaign for AI to be recognized as an inventor around the world.
The United States Patent and Trademark Office and the European Patent Office rejected these applications during the formal examination phase. They gave three reasons. First, their respective patent laws only provide for human inventors – not AI – as indicated by the use of pronouns such as “him” and “she” in their text. Second, ideas, for patent purposes, require the element of “mental design” – something that only a human mind is capable of. Finally, the quality of inventor comes with rights, which AI is not legally capable of possessing.
Much to the surprise of the world community, South Africa’s patent office, the Societies and Intellectual Property Commission, granted the patent, recognizing DABUS as the inventor. He has yet to explain his reasons.
This patent was published in July 2021 in 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 sparked a lot of reaction from intellectual property experts. Critics have argued that this was an incorrect ruling in law, as AI does not have the necessary legal status to qualify as an inventor. Many argued that the grant was simply an oversight on the part of the commission, which was known in the past to be less than reliable. Many also saw it as an indictment of South Africa’s patent proceedings, which currently only consist of a formal examination stage. This requires a sort of evaluation checkbox: ensuring that all relevant forms have been submitted and are duly completed.
Critics believe that if South Africa had implemented a substantive search and examination system, the DABUS patent application would have been rejected.
I do not agree.
Favorable political environment
While it is possible that the board erred in granting the patent, South Africa’s political environment in recent years suggests otherwise.
The first relevant policy was the 2018 Republic of South Africa Intellectual Property Policy Phase I. It marked the start of patent reform in the country. Since then, from 2019 to 2021, three other notable instruments have been published: the White Paper on Science, Technology and Innovation of the Department of Science and Technology; the Presidential Commission on the Fourth Industrial Revolution; and the National Data and Cloud Policy Proposal under Electronic Communications Act No. 36 of 2005.
The central message of all these documents is that the South African government wants to increase innovation to solve the socio-economic problems of the country. There is clearly concern about issues such as low levels of innovation, lack of funding, and lack of the proper infrastructure that is needed to truly capitalize on the Fourth Industrial Revolution.
Given the political environment and the vast potential of AI, granting the patent makes sense. Maybe this will turn out to be a strategic masterclass by the South African office that will lead to a much more innovative nation.
Meshandren Naidoo receives funding from the National Research Foundation. It is affiliated with the African Health Research and Ethics Flagship at the University of KwaZulu-Natal.
By Meshandren Naidoo, PhD Fellow and LexisNexis Legal Content Researcher and Editor, University of KwaZulu-Natal
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