In a sign of the times, the Federal Court of Australia ("FCA") has recently considered whether an artificial intelligence machine is capable of being an "inventor" for the purposes of the Australian Patents Act 1990 (Cth) ("Act") and corresponding Regulations.

On 30 July 2021 in the decision of Thaler v Commissioner of Patents1, the FCA overturned a finding by the Deputy Commissioner of Patents of the Australian Patents Office (IP Australia) that the inventor on a patent application must be human and that the artificial intelligence system referred to could not be an inventor2.

Instead, the FCA held that an artificial intelligence system called "DABUS" which was developed by Dr Stephen Thaler, and was described as being a "....device for the autonomous bootstrapping of unified sentience" could be named as an inventor on a patent application for the purposes of the Act.

The Court noted that Dr Thaler was the owner of the copyright in DABUS's source code, and was also the owner, was responsible for and was the operator of the computer on which DABUS operated. The alleged inventor however referred to in the actual patent application was "DABUS" which also specified that "the invention was autonomously generated by an artificial intelligence".

The Court found that the term "inventor" in the Act is not limited to human inventors, and can be "an artificial intelligence system or device", however the Court did note that "such a non-human inventor can neither be an applicant for a patent nor a grantee of a patent".

It is important to note that the Commissioner of Patents has however decided to appeal the Federal Court's decision, and so for now we watch this space.


1Thaler v Commissioner of Patents [2021] FCA 879

2Stephen L. Thaler [2021] APO 5 (9 February 2021)

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