Patent Application Naming AI as Inventor in India – Dr. Kalyan C. Kankanala opposes Stephen Thaler’s Patent application

The question of whether Artificial Intelligence (AI) can be an inventor in a patent application has been the subject of debate for a while now. There are arguments for and against this issue, and a few models have been proposed to resolve some of the legal problems. The fact that patent statutes in different countries use different words to attribute/define inventorship makes answering the question universally quite difficult. The question of whether AI can be named as an inventor has now arisen before the Indian Patent Office with the examination of a patent application filed by Stephen Thaler naming AI as an inventor.

Patent Application naming AI as an Inventor in India

Thaler filed a patent application in India naming Device for the Autonomous Bootstrapping of Unified Sentience (DABUS). The invention claimed in Thaler’s patent application relates to a food container for attracting enhanced attention. This invention was created by the device mentioned in the patent application, DABUS, which is an Artificial Intelligence Application/Program or Machine. This patent application was also filed in other countries/regions such as Europe, the United States, Australia, Israel, South Africa, etc.

Pre-Grant Opposition by Dr. Kalyan C. Kankanala

Dr. Kalyan C. Kankanala filed a pre-grant opposition against Stephen Thaler’s patent application arguing that patent applications cannot be filed for inventions created by artificial intelligence applications or machines such as DABUS. He stated that AI applications and/or machines cannot claim inventorship under the Indian patent law, thus making the patent application of Thaler legally impermissible and untenable. Dr. Kalyan primarily argued that:

1. The primary objective of the patent system in India is to promote human ingenuity and inventive activity, and grant of patents over inventions created by non-human applications/programs is against the objects of patent law;
2. Different provisions of the Indian Patents Act and related patent forms specifically provide for humans as inventors, and those cannot be extended to AI applications or devices; and
3. No statute or judgment has extended personhood or legal personality to Artificial Intelligence applications, and without legal personality, DABUS cannot be named as an inventor.

You may read the pre-grant representation filed by Dr. Kalyan C. Kankanala here – (https://www.bananaip.com/wp-content/uploads/2022/11/Pre-grant-Representation-Statement-with-Annexures-27.10.2022.pdf)

Additional Grounds

Speaking about including additional grounds or filing representations based on grounds not covered in his opposition, Dr. Kalyan Kankanala stated as follows:

“Though some patent offices and Courts in other countries have already decided on these issues, I believe that it is important to look at this issue in the context of Indian patent law, jurisprudence, and approach. If any person has additional grounds to share, or wishes to file a representation against this patent application, I will be happy to have a discussion, and assist with filing the pre-grant representation as a pro bono activity.”