In late July of 2021, the Australian Federal Court appealed a decision from the Deputy Commissioner of Patents and found that AI can be legally acknowledged as an inventor for the purposes of patent claims. The decision in Thaler v Commissioner of Patents  FCA 879 stems from Beach J’s judicial reasoning where identification of the natural meaning of ‘inventor’ is reflected to be any person or thing that invents. Beach J addressed the inefficiency of not recognizing AI in the creation process and expressly mentioned the encouraging impacts such legal progress may have on the biochemical and pharmaceutical industry. Thus, this decision may aid to potentially stimulate socially conscious inventions in Australia, like the development of pharmaceuticals by AI. The court held that the ownership of inventions is still with the controller and owner of the AI, therefore, ensuring there is an accountability aspect to the decision.
Australian courts are one of the first jurisdictions to make such a determination, as previously similar cases have been unsuccessful in American, British, Asian, and European courts, with the exception of South Africa, who recently accepted a similar viewpoint to Australia’s through an administrative decision. In these unsuccessful cases, the key interpretation of what an ‘inventor’ is played an important role. These commonly disbarred any non-human or computer technology and consequently demonstrated the challenges in differentiating between traditional computer programmes and AI.
Australia’s judicial determination may influence other countries and future legal challenges by creating an unenforceable precedent and acting as a guide for similar scenarios involving AI. The country’s next steps and application of the law will act as a test case, where other jurisdictions can observe Australia’s approach and apply it within their own contexts. It will also be able to demonstrate any benefits therefore promoting the approach taken, particularly within jurisdictions who have a similar legal system, like the UK and Canada. Although, as Australia is the only jurisdiction with such a determination, there is a lack of international standing on patents with registered inventors as AI which is a potential issue. This may see an influx of patent registrations for AI inventions in Australia that are unrecognised or invalid in overseas jurisdictions.
Personally, I hold wavering thoughts about the consequences of this decision as there are a variety of implications which demand reform and adequate policy to follow the decision. Importantly, the decision did acknowledge the importance of creating a legal environment for AI and other emerging technologies. Although, Beach J did not deem AI to be a legal personality through attaining the right to be an inventor, it does raise questions about whether the qualification to be an inventor requires a ‘thinking mind’ or if legal personality can be derived from another source.
There has been an appeal lodged and the determination on the longevity of this decision is awaited.
Alexander Jones. Artificial Intelligence can now be recognised as an inventor after historic Australian court decision (1st August 2021) < https://www.abc.net.au/news/2021-08-01/historic-decision-allows-ai-to-be-recognised-as-an-inventor/100339264 >.
BBC News. AI Cannot Be the Inventor of a Patent, Appeals Court Rules. BBC News (23rd September 2021) .
Chris Vindurampulle, Patrick Sands. AI Can Invent – Australia is First to Recognise Non-Human Inventorship (2nd August 2021). < https://www.iplawwatch.com/2021/08/ai-can-invent-australia-is-first-to-recognise-non-human-inventorship/ >.
Helen Macpherson, Victoria Bell. Australia: AI passes the inventor test (4th August 2021). < https://www.lexology.com/library/detail.aspx?g=840909e4-64ca-4357-890c-06f2b8b280af >.
Luke Hawthorne, Mary Aidonopoulos. DABUS is coming! Federal Court of Australia finds an artificial intelligence system can be an inventor for the purposes of the Patents Act 1990 (Cth) (30th July 2021) < https://www.kwm.com/en/au/knowledge/insights/federal-court-of-australia-finds-an-artificial-intelligence-system-can-be-an-inventor-20210730 > .
Thaler v Commissioner of Patents  FCA 879
Rouse. Patenting Artificial Intelligence in China and South-East Asia. Rouse (9th July 2019) < https://rouse.com/media/y3xpcx3o/rouse-patenting-artificial-intelligence-in-china-and-south.pdf >.