by Dennis Crouch
Sometimes I think of myself as the creativity machine. A cool part of this system is that I have a right to seek and obtain patent protection for my inventions (if any). The USPTO is treating Mr. Dabus differently. When Dabus filed for patent protection in 2019, the examiner refused to examine the patent and the PTO Commissioners Office has confirmed the refusal.
The problem is that Mr. Dabus (DABUS) is not human, but rather is a machine – a creativity machine.
App’n No. 16/524,350 was filed listing DABUS as inventor and identifying DABUS as an “artificial intelligence” that “autonomously generated” the invention. Stephen Thaler created DABUS, then DABUS created the invention. Thaler then filed as the applicant.
In briefing to the PTO, the patent applicant explained that DABUS conceived of the idea of the invention and recognized its “novelty and salience.” In short, DABUS did everything necessary to be listed as an inventor with one exception — DABUS is not a human person.
The Patent Act does not expressly limit inventorship rights to humans, but does suggest that each inventor must have a name, and be an “individual.”
(f) The term “inventor” means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.
35 U.S.C. 100(f). In denying the DABUS petition, PTO Commissioner’s Office suggests that the word “Whoever” in Section 101 indicates a human “natural person.” (citing Webster’s 2011). Of course, Section 271 also uses “whoever” to define infringement — and human “natural persons” are almost never the ones charged with infringement. The Federal Courts have repeatedly held that we need to find the “individuals” who are the inventors, and not simply point to a collective organization like a corporation or government entity. However, the PTO could not point to precedent where the claimed inventor is a thinking non-human machine.
Note here that over the past few years the Federal Circuit has repeatedly equated human mental processes with processes going on inside of a computer (as well as inside a fish).
Although Thaler created DABUS, he feels that he cannot properly name himself as inventor. The PTO appears to suggest the resulting answer — no human inventor; no patent. It will be interesting to see whether this form of identity politics stands the test of time.