The High Court has refused an application by Dr Thaler, owner and creator of the artificial intelligence (AI) machine DABUS, for special leave to appeal a decision of the Full Federal Court to deny AI inventor status under Australian law. While Australia was the first jurisdiction worldwide in which a court held that AI can be an inventor, it is now the first jurisdiction to permanently power down the DABUS dispute, with no further avenues for appeal remaining to Dr Thaler.

The short-lived decision of the Federal Court to allow AI inventorship (discussed here) was overturned by the Full Federal Court on appeal (discussed here), on the basis that only a human can be inventor. On 11 November 2022, three judges of the High Court (Gordon, Edelman and Gleeson JJ) decided a High Court hearing was not "the appropriate vehicle to consider the questions of principle sought to be agitated by the applicant", refusing the special leave application with costs.

As articulated by Edelman J, "there is a significant hole in the operation of [the Patents Act] because it means that you can have an invention but no inventor". Counsel for the Commissioner of Patents, who first refused Dr Thaler's patent applicant for failing to meet the formality requirements for national phase entry by not naming a human inventor, considered this to be a matter of policy and for the legislature to consider, including whether sui generis rights should be provided for AI-generated inventions.

Indeed, AI policy is currently a key focus area of IP Australia and we expect to hear more on the topic in the near future. Meanwhile, patent offices and courts around the world continue to grapple with the DABUS dispute, with the UK Supreme Court slated to hear the matter in February 2023. We will continue to provide updates in relation to this issue as they arise.

DCC was responsible for filing the DABUS application in Australia and has recently filed a corresponding application in Singapore, taking advantage of the late national phase entry provisions.

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