"The law does not stand still. One of the functions of the court, when interpreting the law, is to adapt it to the phenomena of life that came into the world after its enactment – provided that the matter is consistent with the purpose of the legislation [...]. Although the law was enacted in the past, it is also intended to provide a solution to future problems. Such a response is possible, inter alia, by providing a purposeful interpretation that adapts the law to the social changes that occurred after its enactment and to the dynamic living conditions. Hence the statement that "the law is wiser than the legislature" – as opposed to the legislature, which acts at a certain moment in time, the law's action is timeless, in the sense that it remains in place and is explicit even years after its enactment against the background of the changing reality of life" ( Gortler, paragraph 5 of the judgment of Justice Kanfi-Steinitz).
But from what? The interpretation of a law, however dynamic, is supposed to be carried out on an appropriate basis regarding the purpose of the legislation and the way in which it is supported by the requested interpretation. There is no such infrastructure before me.
- Above it was noted that there was a lack of response Satisfying for purposes that arose from the legislative history regarding the concrete provisions.
At the general level, the appellant described the purposes of the law as "encouraging innovation and encouraging inventors to discover their invention" (section 11 of the appeal; and see section 38 of the decision).
Compare: "The Purposes of Patent Law 'on One Foot'" in Additional Civil Hearing 5679/21 SANOFI S.A. v. Unipharm in a Tax Appeal (December 26, 2023), where it was noted, inter alia: "The overarching purpose of intellectual property law, including patent law, is intended to enrich human creativity, encourage scientific research, and assist in the development of technology and progress for the benefit of society," that "in the meantime, various purposes and interests run among patent law, some of which 'pull' in opposite directions," and that "patent law strives to find the proper balance between the various interests [...] by designing a legal system that balances the benefit derived from encouraging inventors to develop inventions, and the economic costs involved in providing these incentives" (paragraph 52 of the judgment).
- In the appeal, it was argued that the purposes and considerations underlying patent law make it possible and even obligatory" to allow him to be registered as the owner of the invention (section 2 of the appeal) and that this would also serve general principles of transparency and purity of the register.
In view of the factual and legal platform above, this description in the notice of appeal is not entirely accurate. It was not the very registration of the appellant as the owner of the invention that stood in the way. The path that the appellant chose to take first requires that the machine be recognized as an "inventor" (and hence proceed to recognize the appellant as the owner of the invention). The argument should therefore be that the purposes and considerations underlying patent law make it possible, not to say mandatory, to recognize the machine as an inventor under the Patents Law. Like the registrar, I was not convinced of this.
- The appellant defined the purposes, as mentioned, as the encouragement of innovation and the encouragement of inventors to discover their invention. The problem is that according to the appellant, the inventor is a machine. A machine does not need encouragement; As of today, her definition as an inventor will not incentivize her to develop innovative inventions[6].
Regarding the relationship between intellectual property law and rapid developments in reality, in one case it was noted that there was a need for flexibility in order to protect "the fruit of man's spirit." "Intellectual property law is a specific, rigid and rigid arrangement, some of which is found in Mandatory Ordinances, and even the new ones are not renewed at the rate at which intellectual property develops in reality. Progress, the amazing development in all areas of life, the innovations, inventions and the many and varied breakthroughs in many fields, give rise to new situations from time to time, most of them unpredictable. Thus, in the field of intellectual property, a situation has been created, in which original ideas, the product of a person's mind, are not protected since they are not embedded in the existing frameworks of intellectual property law" (Civil Appeals Authority 5768/94 A.S.I.R. Import, Manufacture and Distribution v. Forum Accessories and Consumer Products Ltd., IsrSC 52(4) 289 (September 23, 1998) (A.S.I.R.), paragraph 18(g) of the judgment of Justice Strasberg-Cohen). The appellant prima facie argues for the need for flexibility in order to protect "the spirit of a machine".
- It appears that the appellant's intention is that the developers of artificial intelligence machines and the owners of such machines should be encouraged (see the description of his argument in paragraph 38 of the decision).
In the present case, according to the declaration, there is an overlap between the key and the owner. The same entity, the appellant (Dr. Thaler), developed the machine and he is also its owner. But what is the position in a case where there is no such overlap? If a right is granted to the owner of a machine, as can be derived from the appellant's arguments, does the developer of the machine have no rights? Who are you interested in incentivizing? It has not been clarified when, if at all, it will be justified to grant such protection within the framework of patent law in its current form.