Harmans Lawyers
15 May 2023

Artificial Inventor? – The potential genesis of AI litigation in New Zealand.

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With the rise of increasingly intelligent AI and large language models (such as the revolutionary ChatGPT) inevitably comes some new and novel legal issues. The sheer pace of development in the area has many wondering if our legal systems are equipped to adequately handle the issues that are sure to arise. New Zealand has just had one if its first major cases on the subject and it seems the answer to the aforementioned question is more uncertain than we might have hoped.

In the recent decision of Thaler v Commissioner of Patents [2023] NZHC 554, the legal capacity of an AI known as DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) was explored by the High Court. DABUS managed to create a unique food container through minimal human input however when it came time to apply for a patent for the design the Commissioner of Patents refused to recognise DABUS as an “inventor” under the Patents Act 2013. Mr Thaler, DABUS’s creator, appealed the decision of the Commissioner of Patents on the basis that it would be incorrect to identify anyone (or anything) else as the inventor of the food container.

Ultimately, the High Court wasn’t persuaded that the Patents Act 2013 would allow anything other than a natural person (human) or legal person (such as a company or incorporated society) to be an “inventor” for its purposes. In coming to its conclusion, the High Court had to determine that DABUS was indeed not a natural person or a legal person and within our current legislative framework this was an expected outcome. Unfortunately, the Court did not explore the capabilities of DABUS in relation to its autonomy or creativity and the legal ramifications thereof but instead kept the judgment to a simple matter of statutory interpretation.

Granting AI a limited form of legal personhood may be the next step for Parliament, given the exponential growth we are seeing in the sector. New Zealand has not shied away from cultural and societal changes to what is perceived as personhood having previously granted legal personhood to several significant natural features, including Te Urewera and Mount Taranaki.

AI appears to be just as capable, if not more capable, than human beings in undertaking various aspects of day to day life. To continue with the status quo, leaving AI without a recognised legal capacity, ignores the reality of the technology and is likely to stifle creativity and innovation within the sector.

What the case of Thaler shows us is that much of our legislation, even as modern as the Patents Act 2013, has failed to adequately contemplate the role that AI will have in our society as time progresses. Thaler demonstrates that the courts are reluctant to make AI fit within such a structure where it clearly wasn’t contemplated by Parliament.

One of the alternate arguments advanced in Thaler is worth consideration, although it was not explored by the Court unfortunately. Essentially, Mr Thaler advanced the argument that DABUS was a conduit for his inventing and given the fact he had created, and currently owned, the AI any resulting invention was an invention of his. Such a designation is possibly a good first step towards a legal framework for AI in New Zealand but could ignore the autonomy that AI are capable of exhibiting, especially further in the future.

AI is increasingly more capable of creation, particularly in the realm of inventions, illustrations and music and with these come further legal issues for the sector. There are also a number of novel legal issues bound to arise.  A recent example is an  Australian mayor currently threatening to sue OpenAI because ChatGPT, their flagship AI, allegedly defamed him.

An appropriate middle ground for the regulation and rights of AI will need to be found as the case of Thaler has illustrated. The pace of AI is progressing faster than many have expected, and it would appear our legal system is not well equipped to deal with the staggering advancements in this technology.

The case of Thaler related to an AI that managed to make storing food slightly more novel but larger scale AI achievements are on the horizon with the ability to invent and solve problems far beyond that scale. Thaler may well be the catalyst for Parliament to enact legislation before larger scale AI issues present themselves. In the meantime our courts will have to navigate complex AI  issues under the existing law.


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