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👩‍⚖️ AI can’t be an inventor — this is why it matters.

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  • Gig workers could be considered employees

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  • Is this the most commercially aware student in the universe?

  • Adobe’s not buying Figma anymore (but still has to pay $1bn)

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The UK Supreme Court has ruled that AI cannot be recognised as an inventor for patent purposes, as current laws define an inventor as a person. This decision highlights a growing debate on the role of AI in the creative process and raises questions about how laws might need to evolve as AI technology advances to the point where it can create novel ideas.

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👩‍⚖️ AI can’t be an inventor — this is why it matters.

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What's going on here?

The UK Supreme Court ruled that an AI cannot be an inventor of a new product and therefore can’t get patents in its own name.

What does this mean?

Earlier this week, the Supreme Court (Britain’s highest court) decided that “an inventor must be a person” in order to apply for patents under the current law — the Patents Act 1977 (you can read the full judgment here).

Dr Stephen Thaler, an American computer scientist, challenged the UK Intellectual Property Office (IPO), the UK authority on intellectual property rights after their refusal to recognise his AI, DABUS, as the inventor on two patent applications. These patents were for a food container and a flashing light beacon.

The IPO didn’t accept DABUS as the inventor of the products because it was not a legal person (which it needs to be under the law). The Supreme Court agreed with its decision.

Why wasn’t DABUS allowed to be the inventor?

Dr Thaler’s lawyers argued that the existing patent law did not “exclude” non-human inventors and contains no requirements over “the nature of the inventor”.

But Stuart Baran, the barrister representing the IPO, said that patent law required “identifying the person or persons” believed to be an inventor.

Supreme Court judge David Kitchin said that the decision relies solely on the fact that no such law exists that deems a machine a creator. He said that DABUS was “a machine with no legal personality” and that Dr Thaler “has no independent right to obtain a patent in respect of any such technical advance”.

So, who can be considered an inventor?

Under the current law, only a human or a company.

Why should law firms care?

They probably don’t need to worry too much right now.

The decision is “unlikely to cause much disruption for businesses” in the short term, according to Toby Bond, an IP partner from Bird & Bird. He says “AI systems are currently being used as tools by human inventors and businesses will not have a problem identifying one or more humans to name as inventors in their patent applications.”

Even in a more complicated instance where, for example, you use an AI tool to make your invention, there may be a risk that the human creators of the AI tool claim ownership over your invention. But this risk can be resolved by using commercial contracts which assign ownership of inventions created with the use of the AI tool to you — this isn’t anything new and it’s exactly how these risks are dealt with already.

What are the lawyers saying?

  • 🗣️ Giles Parsons, a partner at Browne Jacobson, said the decision was unsurprising. "This decision will not, at the moment, have a significant effect on the patent system because, for the time being, AI is a tool, not an agent.”

  • 🗣️ Rajvinder Jagdev, a partner at Powell Gilbert, said the ruling followed similar decisions by courts in Europe, Australia and the US and has "given certainty that inventors must be a natural person." But he added: "The judgment does not preclude a person using an AI to devise an invention – in such a scenario, it would be possible to apply for a patent provided that person is identified as the inventor."

  • 🗣️ Diego Black, a partner at Withers and Rogers, said a different decision could have caused "headaches for companies using [AI] software to innovate as they may not be the owner of the patent."

  • 🗣️ Simon Barker, a partner at Freeths, said the judgment raised "interesting policy questions" about how governments might look to change laws in the future as AI advances. "There are similar debates in other areas of intellectual property rights too. Copyright in AI-generated works, for example. Is the programmer of the AI the creator, or the user who is responsible for prompting the machine? And what if it really is just the machine itself, like Dr Thaler claimed of DABUS?”

Does the law need to change?

Despite this decision, should the law be adapted to reflect the world we live in now — one with AI? Should the term “inventor” be expanded to include non-legal persons?

These are issues that can only be resolved by the government introducing new new legislation to change the existing patent laws. Last year, the IPO shared the outcome of its consultation on AI and IP law. It concluded that UK law is currently appropriate to protect inventions made using AI and any future change would need to be at an international level.

Professor Ryan Abbott of the University of Surrey who represented Dr Thaler in the case said the Supreme Court’s decision implied that "AI, at best, can be a 'highly sophisticated tool' that can be used by people who invent”. But it’s getting way better, fast, and AIs are becoming increasingly capable of autonomously generating novel ideas.

So, maybe the law will need to change sooner than the IPO thought.

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IN OTHER NEWS 🗞

  • 🤝 According to the SRA’s diversity survey, the proportion of women in law firms has risen to 53%. This is up 5% from 2015. However, there is still a gap in seniority for female lawyers — but this is also smaller than it was before.

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