As Alphari heads into the final day of Groups, he doesn't look forward, doesn't look back. He simply works to realize the ideal top laner that he knows he can become - and to make his trip to NA worth it all.

In both the US and the UK, patent offices have refused to allow applications filed by Dr Stephen Thaler to proceed, on the basis that the named inventor – an ‘AI’ machine dubbed DABUS – is not a human being.  In the first article in this series I looked at the US approach to the role of the inventor in patent law and practice, and at the recent decision of Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) upholding the USPTO’s decision.  In the second, I discussed the split decision of the Court of Appeal of England and Wales, which upheld (by a 2-1 majority) the decisions of the UK Intellectual Property Office (UKIPO) and the High Court.

In Australia, the Patent Office also refused to allow a corresponding application by Dr Thaler to proceed.  In contrast to the US and the UK, however, that decision was overturned by Justice Beach in the Federal Court.  The Commissioner of Patents has now appealed that ruling to a Full Bench of the Court (case no. VID496/2021).  In this article, I will be looking at the potential implications of the recent US and UK decision for the conduct and outcome of the appeal in Australia.

It should be said at the outset that the US law is very different to that of Australia, and it is therefore unlikely that anything in Judge Brinkema’s legal reasoning will be influential upon the Full Court.  It has also become apparent through the UK High Court and Court of Appeal decisions that while the UK law shares some similarities with the corresponding provisions of the Australian Patents Act 1990, there are also some significant differences.  Even so, there are aspects of the reasoning of Lord Justice Arnold in the Court of Appeal that the Australian appeals court may consider persuasive, and that could therefore influence the outcome here.

There are two key questions likely to be addressed in the appeal, both of which also arose in the UK, although only the first received substantive attention in the US.  These are:

1. Can DABUS, as an ‘AI’ machine and not a human being, validly be named as an inventor on a patent application?
2. Can Dr Thaler, not being (at his own insistence) the inventor, establish a proper legal basis for entitlement to the grant of patents on inventions said to be generated by DABUS?

I shall look at each of these questions in turn.

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In the first article in this series I looked at the US approach to the role of the inventor in patent law and practice, and at the recent decision of Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) upholding the USPTO’s decision to refuse two patent applications on the basis that the ‘AI’ machine DABUS is not a human being and therefore cannot be an inventor under US law (Stephen Thaler v Andrew Hirshfeld and the US Patent and Trademark Office, Mem. Op. [PDF 998kB]).  In this article, I shall turn my attention to the split decision of the Court of Appeal of England and Wales in Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374, in which parallel efforts to name DABUS as an inventor have also been rejected, with Thaler’s appeal being dismissed despite a weighty dissent by Lord Justice Birss.

The issues in the UK case are somewhat different, and more nuanced, than in the US.  While all three judges on the Court of Appeal agreed that an ‘inventor’ under the UK law must be a human being, the fact that DABUS is a machine was not immediately determinative of the outcome.  An inventor is not required to play any active role in the filing, prosecution, or grant of a patent in the UK, so arguably there remains a question as to whether an application can be permitted to proceed even if a legally valid inventor has not been – or cannot be – named.  In the event, the answer to this question turned on whether or not the applicant (i.e. Dr Thaler) could satisfy statutory requirements to name the inventor, and to indicate how he is entitled to be granted patents on inventions that he did not claim to have devised himself.

Lord Justice Arnold and Lord Justice Birss disagreed on the outcome, with the tie being broken by Lady Justice Elisabeth Laing, agreeing with Arnold LJ that the DABUS applications should be deemed withdrawn. 

Arnold LJ is the preeminent patent law specialist on the Court of Appeal.  He was elevated to the Court of Appeal in 2019, after being appointed to the High Court in 2008, and as Judge in Charge of the Patents Court in April 2013.  In March 2016 he was appointed as an External Member of the Enlarged Board of Appeal of the European Patent Office.  Impressive as this is, however, Birss LJ is no lightweight.  In 2010 he was appointed as a Specialist Circuit Judge sitting in what was then the Patents County Court.  In 2013 he was appointed to the High Court, and in 2019 he filled the place formerly held by Arnold LJ as Judge in Charge of the Patents Court, before being elevated to the Court of Appeal in January 2021.

So this is a case in which the dissenting judgment must be taken seriously, especially with the possibility still open of an appeal to the Supreme Court.  But for now, at least, the balance of the law remains against DABUS in the UK.

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On 27 August 2021, the Commissioner of Patents lodged an appeal (case no. VID496/2021) against the decision of Justice Beach in the Federal Court of Australia finding that the ‘AI’ machine known as DABUS could be named as sole inventor on an Australian patent application.  Unusually, and presumably in recognition of the media and public interest generated by this case, IP Australia took the step of announcing the filing of the appeal, while emphasising that ‘[t]he appeal is centred on questions of law and the interpretation of the patents legislation as it currently stands’ and that ‘[t]he decision to appeal does not represent a policy position by the Australian Government on whether AI should or could ever be considered an inventor on a patent application.’  The appeal will most likely be heard by a Full Bench of the Federal Court comprising three judges, although in rare cases deemed sufficiently significant a five judge panel may be assigned.  A hearing could take place as early as November this year, but at this stage it seems more likely to be scheduled for early in 2022.

In the meantime, however, parallel test cases initiated by Surrey University Professor Ryan Abbott’s Artificial Inventor Project have been making their way through the US and UK courts.  On 2 September 2021, Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) rejected Dr Stephen Thaler’s appeal against the USPTO’s decision to refuse two patent applications on the basis that DABUS is not a human being and therefore cannot be an inventor under US law (Stephen Thaler v Andrew Hirshfeld and the US Patent and Trademark Office, Mem. Op. [PDF 998kB]).  And on 21 September 2021, a majority of the Court of Appeal of England and Wales (Lord Justice Arnold and Lady Justice Elisabeth Laing, Lord Justice Birss dissenting) upheld a decision of the High Court which agreed with the UK Intellectual Property Office (UKIPO) that Thaler’s applications should be deemed withdrawn because of his failure to identify a natural person as inventor (Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374).

These cases are, of course, of interest because they concern the fascinating question of whether non-human machines can be inventors for the purposes of obtaining patent.  But they are also interesting for what they reveal about the differences between the treatment of inventors under US and UK law.  In the US the inventor is central and indispensable – a position that arguably derives ultimately from the Constitutional authority for Congress to make laws ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’.  In the UK, however – and in the view of Birss LJ in particular – the identity of the inventor is almost irrelevant in the majority of patents applied for, prosecuted and granted.

I will cover these latest developments in the DABUS saga over a series of three articles.  In this first article, I will look at the approach taken to the role of the inventor in the US, how it differs from other jurisdictions, and the recent decision from the EDVA.  The second article will cover the split decision in the UK, and how the differing opinions of eminent patent jurists Arnold LJ and Birss LJ stack up.  Finally, in the third part I will look at where Australia sits, and consider whether either of the US and UK decisions may be of any relevance in the upcoming Full Court appeal.

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What has been the impact of the COVID-19 health crisis been on the innovation landscape? Sacha Wunsch-Vincent, Senior Economist and co-editor of the GII 2021 at WIPO discusses the report’s key findings.

Where are all the workers? That’s the question that many manufacturing leaders are asking right now, as labour shortages and skill deficits put the brakes on their ambitions for post-pandemic recovery.

New ideas and bold thinking are urgently needed, given the extent of these problems. Labour shortages are creeping upwards in the European Union and manufacturing companies report that it’s getting harder to hire. At the same time, 79 per cent report skills shortages, according to a 2020 report from technology industry trade body Digital Europe. “New graduates lack work-ready competences. Experienced ones got trained in a pre-digital, traditional manufacturing world,” write the report’s authors.

The pressure is on for manufacturing companies to offer better and more satisfying jobs, and to equip workers with the skills and training they need to perform them. Augmented reality (AR) technology could be an important part of that picture – but only if the employee experience takes centre stage in any implementation plans.

The uptake of AR - which overlays digital information onto physical objects and environments in the workplace and supports remote collaboration - has seen a sharp increase in the past year or so. During the pandemic, it proved its value in helping companies get around the challenges of remote working and social distancing in industrial environments. Now, employers should be looking at AR as a way to attract new employees to their organisations and to reskill and upskill existing workers.

So how can employers put AR to work in a people-centric way that delivers the best chances of business success? To my mind, they should always start with a problem, a pain point or a challenge. Anything that frustrates employees in their daily work, or slows them down, should be the baseline. In other words, when it comes to creating an AR experience, manufacturing leaders may be wondering ‘What should I build?’ or ‘How should I build it?’ These questions are for later. To begin, the most important question should be, ‘Why should I build it?’

For example, employees may struggle to set up or operate a particular piece of machinery on the factory floor. Work instructions, delivered by AR, could guide them through the best approach, step by step. When building products, they might use AR to refer back to the original CAD files to understand what components and parts they need to use and the way these fit together. Similarly, service engineers working in the field could use AR to collaborate with colleagues back at headquarters on the best way to fix a previously unseen fault with a customer product.

In each of these cases, and many more besides, AR solves a problem that might otherwise sap workers’ time, energy and patience. But the involvement of frontline employees shouldn’t end with their reporting of these pain points. In my experience, the best outcomes are delivered when employees continue to be consulted and involved as the project progresses and their needs, wants and concerns are met at every stage.

For example, employees should be included in use-case definition. Identifying a pain point is only the start. Companies need to then build whole use cases that don’t just address a single pain point, but aim to improve how whole workflows are performed. The best way to do that is to shadow employees and hear directly from them at what stages in a job or task they tend to struggle. Let them tell you where improvements are needed.

Similarly, when companies are preparing to make a significant investment in AR, they need to be confident they’ve asked the right questions upfront. Bad decisions at this stage could easily frustrate employees, forcing them to revert to old habits and practices. Does hardware and software work in the way that employees need it to, for example? Is the technology easy and comfortable to use, enabling them to consume the information they need, when they need it? Do proposed hardware formats work well with hands-free tasks? Does the proposed software platform have the potential to support other AR experiences as new use cases emerge? Involving employees in try-outs of proposed technology solutions will be vital.  

The importance of content to AR cannot be overestimated. After all, it’s what is used to augment reality! In industrial use cases, content may well take the form of CAD or PLM data, which contains key engineering information and knowledge about how products are built, configured and work. Work instructions, meanwhile, will need to be supplemented by the tacit knowledge contained in the heads of experienced workers who perform given tasks every day and know the best ways to get them done. Data from learning management systems may also be involved. Again, shadowing employees in their work enables them to report any gaps in data or information in the content streamed to them via AR. In short, what are the questions that they want AR to answer for them?

Finally, there’s the value of soliciting feedback from users. While many executive teams will understandably want to see improvements to key performance indicators (KPIs) on productivity, throughput and wastage from their use of AR, these are unlikely to follow unless employee feedback is given priority. Factory-floor work evolves all the time, especially when new machinery is introduced or new products are being built. Gathering feedback from frontline employees and acting on it is the best way to ensure that higher level KPIs are achieved - and that they continue to get met as work evolves.

It’s real ‘hearts and mind’ work, solving real problems for real people. But as a manufacturing organisation searches around for new people to hire, the fact that it’s using AR to make work better for existing employees is a great advert for its employer brand. But more than that, it empowers the people it already employs, increasing their capacity, skills and satisfaction in ways that mean they’re more likely to stay on board.

Sam Murley is worldwide digital transformation director for augmented reality products at PTC.

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As I recently (tentatively) predicted, on Friday 30 July 2021 Justice Beach in the Federal Court of Australia handed down a judgment giving Australia the dubious honour of becoming the first country in the world to legally recognise a non-human as a valid inventor on a patent application: Thaler v Commissioner of Patents [2021] FCA 879.  I would suggest that the remarkable speed with which this unnecessarily lengthy (228 paragraphs) decision was rendered, after being heard on 2 July 2021, may reflect the judge’s enthusiasm for issuing such a ground-breaking ruling.  Unfortunately, I do not share that enthusiasm, and I am confident that there are many others who are equally uncomfortable with the outcome.  My hope is that this includes officials within IP Australia and the Department of Industry, Science, Energy and Resources, and that the decision will be duly appealed to a Full Bench of the court.  It is, in my view, deeply regrettable that the Commissioner of Patents did not put on a stronger defence in the first instance because, even though an appeal was probably inevitable either way, the worldwide publicity that this decision is now generating is not necessarily beneficial for Australia.

The judge summarised his reasoning (at [10]) that:

…in my view an artificial intelligence system can be an inventor for the purposes of the Act. First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion.

The patent system faces many challenges, but right now a need to grant more patents in a wider range of circumstances in not one of them.  We are in the grip of a global pandemic, and very serious questions are being asked about whether patents deliver a net benefit to the people of the world by incentivising the development of new vaccines and treatments, or whether they have the detrimental effect of denying affordable access to vital care and protection in poor and developing nations.  While I am firmly in the former camp, it only becomes harder to defend the patent system when opponents see the law expanding access to allow inventions generated by machines – potentially including those owned and controlled by giant corporations.

The standing and reputation of Australia and our patent laws are also at risk.  The country is already the target of criticism – rightly or wrongly – for declining to support calls for a waiver of IP provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).  The Federal Court’s decision in Thaler is receiving global attention, and not all of it is positive.  One tweet (in Spanish) compares Australia’s patent-friendly approach unfavourably with the infamous incident of an early innovation patent being granted for a ‘circular transportation facilitation device’, a.k.a. the wheel.

Just because patents are (or, at least, can be) good, it does not follow that more patents, generated in more ways, by more entities, must be better.  Australia should not think that we will necessarily come across as a socially and technologically progressive nation by ‘leading the way’ on allowing patents to be granted for inventions generated by non-humans.  On the contrary, we risk being left out on our own and looking like chumps.  The United States will not follow our lead – there are Constitutional, statutory and procedural barriers to permitting US patent applications naming non-human inventors.  The European Patent Office will not follow in the foreseeable future – it has already established its position via an academic study and discussions with member states of the European Patent Convention.  The UK has so far rejected any expansion of inventorship to non-humans.  And, contrary to recent reports (and the claims of the Artificial Inventor Project’s Ryan Abbott), the recent grant of a patent in South Africa naming DABUS as inventor indicates nothing about that country’s law or position on the issue.  As South African patent attorney Pieter Visagie has explained, the application effectively avoided any scrutiny of the legitimacy of the inventor by virtue of being filed via the international (PCT) system.

So what does Australia gain by being the first – and possibly only – country in the world to legally recognise non-human inventors?  Nothing, as far as I can see, other than a whole lot of unneeded publicity and global scrutiny of our patent laws.  If we are lucky, we will not receive many serious patent applications for inventions generated by machine inventors, and little practical harm will be done.  At worst, however, we could become the only country in the world to grant patents on such inventions, mostly filed by foreign applicants, creating exclusive rights that are enforceable only in Australia to the relative detriment of Australian innovators and consumers.

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In the part one of this article we discussed about the general understanding of AI divided as ANI and AGI, ANI’s adoption and influence in the copyright law, and complexities arising out of the adoption of ANI while generating copyrightable works. Further, let us understand the intricacies involved in the examination of ANI. What could happen if ANI generated works are granted copyright protection, and other complexities that could arise if ANI is left unsupervised.

On 2 July 2021, a hearing took place at the Federal Court of Australia in Melbourne, before Justice Jonathan Beach, in the matter of Stephen Thaler v Commissioner of Patents.  This case concerns the question of whether a patent may be granted for an invention that was devised by a machine, rather than by a human inventor.  Back in February, I reported on the refusal by the Australian Patent Office to accept as valid an Australian patent application naming an ‘artificial intelligence’ going by the name DABUS (‘Device for the Autonomous Bootstrapping of Unified Sentience’) as inventor.  And in March I reported that an application had been filed in the Federal Court for review of the Patent Office decision.

Regular readers will know my position on this issue – I do not consider it appropriate at this time (or, potentially, ever) to grant patents for inventions devised entirely by automated means, such that there is no human inventor.  I have written an article targeted to a more general audience, which has been published by InnovationAus, providing an overview of the Australian case, and broadly discussing my concerns.  Here I will be going into more detail of the arguments presented at the recent hearing, and why I think it would be very unfortunate if Justice Beach were to decide that this is a suitable case for judicial development of the law to embrace machine inventors, as he is being encouraged to do by Thaler.

I was able to attend the hearing virtually, since it was being held via web conference.  Thaler’s team, led by experienced and highly-regarded barrister David Shavin QC, appeared in person in the Melbourne courtroom with Justice Beach, while the Commissioner of Patents was represented by Hamish Bevan, appearing via video from Sydney (subject to restrictions, due to an ongoing COVID outbreak).  Although I disagree with the proposition, I thought that Mr Shavin presented a persuasive argument that the relevant provisions of the Australian Patents Act 1990 can, and should, be interpreted to encompass non-human inventors, and that Mr Bevan perhaps did not do enough to counter this argument.  I formed the impression that Justice Beach just might be minded to ‘develop’ the Australian law to permit patent applications having no human inventor, in part because he was not presented with any particularly good reasons not to do so.

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