Page 27 - EngineerIt August 2021

LEGAL OPINION: PATENTS FOR AI GENERATED INVENTIONS

South African Patent

Office's recent grant

of a patent for an

invention created by

artificial intelligence

By Pieter Visagie, partner and patent attorney at Adams and Adams

n the past few weeks there has been extensive reporting, globally, heralding the
South African Patent Office (administered by the Companies and Intellectual Property
ICommission, or “CIPC”) (“Patent Office”) for having been the first patent office in the world
to have granted a patent for an invention that was created by artificial intelligence (AI).
The abovementioned reporting would be bolstered by the recent reports of the
Australian Federal Court ruling, in respect of a corresponding patent application in
that country, that the naming of AI as an inventor in an Australian patent application is
permissible (Thaler v Commissioner of Patents [2021] FCA 879).
In South Africa, the relevant patent is South African patent number 2021/03242
(“Patent”), granted on 28 July 2021 to Stephen L. Thaler and naming as inventor “DABUS,

the invention was autonomously generated by an artificial intelligence”. THE MOST

INTERCONNECTED
Besides the Australian counterpart, the patent has several other foreign counterparts,
some of which have already been rejected by the relevant foreign patent offices on DATA CENTRE
the basis that the identification of AI as an inventor does not meet their formality IN AFRICA.
requirements. We have written about some of these counterparts, and their rejection, on
two earlier occasions:
• UK Provisionally Closes the Door on AI Inventorship - Adams & Adams
• EPO decides on AI inventorship - Adams & Adams

The global buzz around the grant of the patent is understandable, since the question of
whether inventions created by AI are patentable has, over the past few years, been the
subject of much debate.
This global buzz is in our view somewhat misplaced in the context of the South
African grant.
Any contribution that the grant of the patent makes to the debate must be viewed in the
context of the provisions of the applicable laws, treaties and practices that were followed
by the South African Patent Office in granting the patent.
Regrettably, as we conclude below, it is clear to us that there was, in the circumstances
leading up to the grant of the patent, no interrogation by the Patent Office of the
identification of AI as the inventor, at least since the relevant treaties, laws and practices,
as purposefully utilised by the applicant to clear its path to grant, left virtually no room for
the Patent Office to do so. www.teraco.co.za

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