Australian Court finds AI systems can be an “inventor”

By Jane Owen, Rebecca Currey

08-2021

In a world first, a judge of the Federal Court of Australia has found that artificial intelligence (AI) is capable of being an “inventor” for the purposes of the Australian patent regime.

This is one more chapter in the global debate as to whether patent law and policy should adapt to recognise the changing innovation landscape. This decision is one of a series of test cases globally regarding AI “inventors” on the current state of patent law in certain jurisdictions.

The confirmation that, in Australia, AI can be “inventors” under our existing regime (subject to any appeal decision) is contrary to the position in the UK, EPO and USA, where an inventor must be a natural person.

Background

An artificial intelligence system, known as DABUS (or device for the autonomous bootstrapping of unified sentience), had been named as the inventor by the Applicant, Dr Thaler, on a PCT application designating Australia. The alleged invention was the output of DABUS’ various products and methods directed at an improved fractal container.

DABUS had been named as the inventor because the Patent Regulations require, in relation to a PCT Application, the Applicant to name the “inventor of the invention to which the application relates”.

The Deputy Commissioner of Patents (Commissioner) had rejected the application because the application did not name a human inventor. The Commissioner was of the view that the ordinary meaning of “inventor” (which is not defined in the Patents Act) was “inherently human”, and that naming AI as the inventor was incompatible with section 15 of the Patents Act, which provides:

a patent for an invention may only be granted to a person who:

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