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Israel: Could the Startup Nation be the First to Allow AI Inventors?

Client Updates / Jun 25, 2023

Written by Ephraim Zachary Heiliczer

Dr. Thaler launched a worldwide effort to have AI recognized as a patent inventor. Thaler submitted two Israeli patent applications in Israel, listing DABUS as the inventor in August 2019. Although, the Israeli Patent Office refused both patent applications in December 2020 and December 2021. The second refusal offered hope since the Israeli examiner accepted Thaler’s arguments that AI could be considered an inventor.

In March 2023, in one of his final decisions, Ofir Alon, the former Israeli Patent Commissioner, reversed the examiner’s determination that AI could be an inventor, rejecting the use of purposeful interpretation to allow AI to be considered an inventor. The former Commissioner explained that interpreting the term “inventor” as including AI would potentially create an asymmetry in policy between Israel and other patent jurisdictions. Commissioner Alon also rejected the application because AI is incapable of transferring rights.

Dr. Thaler has appealed the former Commissioner’s decision. The appeal has a decent chance of success since Israeli courts extensively employ purposive interpretation. Further, Israel will appoint a new Patent Commission in the coming months, so even if Thaler’s appeal is unsuccessful, the new Commissioner may take a pro-AI position.

The former Israeli Patent Commissioner’s decision is certainly not an outlier since; currently, South Africa is the only jurisdiction to tentatively allow DABUS to be listed as an inventor. The US, EPO, UK, China, Korea, and Japan have all rejected Thaler’s attempts for AI inventor recognition. A potential compromise might be the German position listing a human as the first inventor, with AI listed as a second inventor. But could Israel go further?

Although AI inventors defy the expectation that only human beings can be designated as inventors on a patent application, they have the potential to be a catalyst for immense economic growth and technological innovation. Israel, the startup nation, symbolizes technological advancement and purposeful judicial interpretation, another emblematic characteristic of Israel that may allow Israel to recognize AI inventors ahead of other countries that wait for Parliamentary intervention.