This is an update to the article below: "Artificial Intelligence: An Inventor?" in relation to the Federal Court of Australia ("FCA") decision of Thaler v Commissioner of Patents on 30 July 2021, in which it was found that an artificial intelligence system called "DABUS" could be named as an inventor on a patent application for the purpose of the Patents Act 1990 (Cth) ("Act"):

The Commissioner of Patents appealed this decision, and on 13 April 2022, the Full Court of the Federal Court unanimously overturned the FCA's decision and found that an artificial intelligence system could not be considered an "inventor" for the purposes of the Act and the Patent Regulations 1991 (Cth) ("Regulations").

Taking into account the statutory language of the Act and the Regulations, the structure and history of the Act, and policy objectives underlying the legislative scheme, the Full Court found that only a natural person could be an "inventor" for the purposes of the Act and the Regulations1.

The appeal judgement also opened important policy debates as to the role of artificial intelligence in Australian patent law. A question raised by the Full Court was whether, as a matter of policy, a person who is an inventor should be redefined to include an artificial intelligence system.2

Dr Thaler subsequently applied for special leave to appeal to the Australian High Court. The application was dismissed on 11 November 2022 and it was held that "this is not the appropriate vehicle to consider the questions of principle sought to be agitated" by Dr Thaler.3


1 [2022] FCAFC 62, [113][117].

2[2022] FCAFC 62, [119].

3[2022] HCATrans 199.

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