South Africa Grants First Patent Naming AI Inventor DABUS, Sparking Global Debate on AI Inventorship

When considering the term “inventor,” most envision human creators rather than artificial intelligence (AI) machines. However, this perception is being challenged as AI’s role in innovation expands globally. Notably, South Africa recently granted a patent naming an AI system, DABUS, as the inventor—likely the first instance worldwide—prompting patent offices internationally to reconsider the definition of inventorship.

DABUS, an AI machine developed by Dr. Stephen Thaler, was listed as the sole inventor on patent applications filed in 2018 with multiple patent offices, including the United Kingdom Intellectual Property Office (UKIPO), the European Patent Office (EPO), and the United States Patent and Trademark Office (USPTO), under the Patent Cooperation Treaty (PCT). Dr. Thaler did not claim inventorship himself but instead identified DABUS, which operates via two neural networks that generate and evaluate ideas, mimicking human cognitive processes.

The patent applications concerned two inventions: a fractal beverage container capable of shapeshifting to interlock containers without external components, and a controllable flickering light designed to attract attention in emergencies by mirroring brain activity. Despite the innovative nature of these inventions, patent offices in the UK, Europe, and the US rejected the applications on the grounds that only natural persons can be inventors. These jurisdictions emphasized that inventors must possess legal personality to exercise patent rights, a status AI systems like DABUS do not hold.

Contrastingly, on 28 July 2021, South Africa’s Companies and Intellectual Property Commission (CIPC) granted a patent listing DABUS as the inventor and Dr. Thaler as the applicant. This patent was published in South Africa’s Patent Journal, marking a historic first. However, South Africa’s patent system differs significantly from others; it lacks a substantive examination process and does not define “inventor” in its patent laws. The CIPC’s role is limited to verifying formal documentation rather than assessing the patent’s substantive validity.

By comparison, jurisdictions such as Europe, the UK, the US, and Canada have specific statutory definitions and rigorous examination procedures. For instance, Article 58 of the European Patent Convention allows applications from natural or legal persons but does not extend inventorship to AI. The UK Patents Act 1977 defines an inventor as the “actual deviser” and courts have interpreted this to mean a natural person. Similarly, US law under 35 U.S.C. §§ 100 and 102 restricts inventorship to individuals. Canadian patent law grants patents to “the inventor or the inventor’s legal representative,” with the Supreme Court of Canada interpreting “inventor” as a person who conceived the invention.

Given these differences, South Africa’s patent grant to DABUS is unlikely to be replicated in jurisdictions with more stringent patent examination and statutory inventor definitions. Furthermore, even if a patent office accepts an AI inventor, the patent’s validity could be challenged in litigation, an issue yet to be tested.

The South African decision raises two pivotal questions: can an AI machine be recognized as an inventor, and can it own a patent? Recently, the Australian Federal Court overturned the Australian Patent Office’s rejection of Dr. Thaler’s application, ruling that DABUS could be an inventor. Although this does not guarantee patent grant—substantive examination remains—this ruling may influence future cases in Canada and other countries.

This evolving legal landscape underscores the need for ongoing analysis of AI inventorship, including statutory interpretation, patent office practices, and policy considerations. Subsequent parts of this series will explore these issues in greater depth, examining international approaches and implications for the future of AI-generated inventions.

The authors acknowledge the assistance of students Marisa Kwan and Aaqib Mahmood in preparing this update.