South Africa: Inventorship In The Age Of Artificial Intelligence

Last Updated: 10 December 2018
Article by Thapelo Montong

Artificial intelligence (i.e. AI) has been the buzz word in the past couple of decades, more so if one looks at fictional applications of AI in movies such as Star Wars and I, Robot to name a few. Fast forward to year 2000, AI, although still in its infancy, has been applied in real life in the form of, inter alia, Dr Thaler's Creativity Machine, Apple's Siri, IBM's Watson, as well as Amazon's Alexa.

AI has grown to such an extent that superhuman AIs, i.e. so-called mother of machines, have been devised which can come up with inventions on their own. Although these AI machines do not have to obey Asimov's laws, at least for now, it is apparent that they have been developed to iteratively learn, without human intervention, from pre-processed data or tabula rasa to provide insights and solutions for which they were never programmed to provide. A question arises as to whom would get credit for an invention which was devised by superhuman AI with little or no human intervention at all. Would it be the original creator of the AI, the AI itself, or can it possibly be the end user of the superhuman AI coming up with the inventive solution?

Inventorship in view of current international patent legislations and case law

The current position in South Africa and most IP jurisdictions, is to recognize inventions devised through a mental act of a natural person as inventions that are capable of patent protection. The European Patent Convention does not, for example, necessarily define who the inventor is. The position in practice is to only recognize humans as inventors, whereas corporations and organizations cannot be recognized as such.

In South Africa, the Patents Act No. 57 of 1979 does not necessarily define who the inventor is. However, its predecessor (i.e. the repealed Patents Act No. 37 of 1952) defined the inventor as "including the legal representative of a deceased inventor or of an inventor who is a person under disability". Although there is no definition of the inventor in our current Patents Act, it is submitted that the definition of the inventor in terms of current South African patent law is no different from what it was under the repealed law. In this regard, the definition of the inventor as set out herein clearly indicates that an inventor is a human being and cannot be a company or non-human being.

In an old South African court case (i.e. Hay v African Gold Recovery Co), our courts have said "The 'first and true inventor' signifies that the person so described made the discovery himself, and that he did so before anyone else in any part of the world." Furthermore, in a UK court case (i.e. University of Southampton's Application) the test for formulating who the inventor of an invention is, was set as follows: "First it is necessary to identify the inventive concept or concepts in the patent or patent application. Secondly, it is necessary to identify who came up with the inventive concept or concepts. He or they are the inventors. Thirdly, a person is not an inventor merely because he 'contributes to a claim'. His contribution must be to the formulation of the inventive concept." In the U.S. Code, the term "inventor" means the individual who invented or discovered the subject matter of the invention. In a U.S. case (i.e. re Hardee, 223 USPQ 1122, 1123 (Comm'r Pat. 1984)), it was stated that "The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor... Insofar as defining an inventor is concerned, reduction to practice, per se, is irrelevant [except for simultaneous conception and reduction to practice]. One must contribute to the conception to be an inventor." As to who the person is, the term "individual" includes, as defined in the U.S. Code, every infant member of the species homo sapiens who is born alive at any stage of development.

It is clear from the foregoing that case law and laws of leading IP jurisdictions only recognize human inventors as creators of patentable inventions. There is also no guidance whatsoever in the text of our patent laws regarding future inventorship rights of inventions which can be devised by superhuman computers.

Human involvement required in the inventive concept

As mentioned in the foregoing, an individual needs to contribute towards an invention in order to be cited as the inventor of the invention. A person who is merely instructed to perform a task without applying their mind to the task cannot in any circumstance be regarded as the inventor. In this regard, an individual who has conceived an invention and thereby uses a computer to reduce the invention to practice, for example by performing calculations which have been reasonably foreseen by the inventor or perform an analysis which was also reasonably foreseen by the inventor, may be regarded as the inventor of the inventive solution. If the converse is true, then the inverse is also logically true – especially in a situation where the computer has been provided with parameters to individually assess, provide optimal recommendations and output a result which was never foreseen or conceived by the user. Would it therefore be correct in such as situation to cite, as the inventor, the computer or user of the AI who luckily stumbled upon the invention by means of the AI?

Looking at IBM's Watson for example, as it used in the food truck industry, the Watson merely receives, inter alia, an input of ingredients and dietary requirements from a user, and accordingly interrogates a database of thousands of recipes to come up with a new combination of the specified ingredients. If the combination of the ingredients proposed by Watson could have never been foreseen by the user, then it can be argued that the new recipe proposed by Watson can be a subject of a patent (although in practice it may be difficult to prove on the novelty and inventiveness of such a recipe since people have been combining ingredients for eons, and such combinations are largely undocumented).

In another example, Dr Thaler's Creativity Machine which was devised for autonomously generating new concepts, designs, music, and processes using artificial neural networks, was used in outputting the Oral-B cross action toothbrush without any human intervention. It is reported that the Creativity Machine was provided with various designs of toothbrushes and their respective performances, and it accordingly conceived the idea of crossing the bristles of the toothbrush. In that way, the cross-action toothbrush was devised. It is reported that Dr Thaler never conceived the idea of crossing bristles of a toothbrush, however, he continuously praises the Creativity Machine for intuitively conceiving that invention.

Birth of superhuman AI

Computers are conceived by humans and their functionalities are derived from algorithms which have been devised by humans. It is therefore arguable that the original creators of the AI programs, such as Dr Thaler, should be regarded as inventors of inventions conceived by their computers. This argument may of course sound compelling taking into consideration that human creators created the AI algorithm which gives the computer its superpowers to creatively conceive ideas or inventive solutions which may be made the subject of a patent application. However, can it be argued (religion put aside) that God or any other deity that created human beings who were conceived tabula rasa, is the true inventor of all inventions which have been conceived by humans? Can inventions also be said to have been conceived by our parents by them conceiving and giving birth to an individual who ultimately came up with an invention? If that's not the case, then it can be argued that computers which are programmed with AI and learn tabula rasa to creatively conceive new ideas, should be regarded as inventors and not the creators of their algorithms as such.

Patents which have been applied for and/or granted without citing the computer as the inventor

As mentioned before, our current patent laws do not recognize non-humans as inventors of inventive concepts. Dr Thaler is, for example, cited as the only inventor of the patent surrounding the operating principles of the Creativity Machine. As mentioned above, it has been reported that Dr Thaler has made public declarations that the Creativity Machine has come up with many other inventions which he never thought of. Now imagine a situation where the Creativity Machine has devised one of such inventions, which is then ultimately made the subject of a South African patent application, and which application then only cites Dr Thaler as the only inventor of the invention. The South African patent application would be accompanied by a declaration form which would declare that Dr Thaler is the true inventor of the invention that is being made the subject of the patent application. Generally, Dr Thaler's public declarations that the Creativity Machine devised the invention which is the subject of his patent, could be used by a third party to attack his eventually granted South African patent on the ground that he made a false declaration when applying for the patent by citing himself as the true inventor of that invention. If the attack of his patent on this ground is successful, this would result in his South African patent being revoked and thereby falling into the public domain for free use by the public.


About a year ago, Elon Musk's made a comment which he derived from Max Tegmark's book entitled Life 3.0: Being Human in the Age of Artificial Intelligence, in which it is alluded that under the current patent laws, all inventions will be free and open to the public. With the progress of AI so far and the archaic patent laws which are currently in-force, this comment is becoming true by the day – especially taking into consideration that the world and patent offices are slowly becoming aware of the capabilities of AI, and may simply refuse to examine or even grant a patent should it be suspected that the human inventor is not necessarily the "person" that conceived the invention in question.

Although we do not know how the courts will decide on cases involving inventions created by non-humans, is it possibly now the time for our present, antiquated patent laws to be reviewed and possibly amended to consider the addition of the superhuman AI machine as an inventor? Only time will tell.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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