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Australia Appeal Decision Reverses Direction On AI Inventorship

Over the past few years technology evangelist and
inventor Stephen
Thaler, together with the Artificial Inventor
Project, has campaigned for patent law changes 
across jurisdictions to recognize artificial intelligence
(AI) as an inventor on patent applications. To further their goal,
the group filed 
patent applications in various jurisdictions around the
world listing an AI agent named “DABUS” as the sole
inventor. Traditionally, only humans who contributed to an
invention’s conception may be listed as inventors on a patent
application. But Thaler’s patent applications ran contrary to
this convention, proposing that DABUS should be listed as the
inventor because the invention disclosed in the patent applications
was produced entirely by the AI agent without human
involvement. 

Patent offices around the world, including Europe and the U.S.,
widely rejected the applications because they listed the DABUS AI
as the inventor, so Thaler took the issue to the courts.
Subsequently, courts across Europe and in the U.S. confirmed that
their patent laws do not recognize AI agents as inventors on patent
applications. By August 2021, there were two outliers
– 
South Africa and Australia. Even though 
South Africa granted a DABUS application, the country
lacks a substantive examination process and 
South African patent law experts doubt the DABUS patent
will survive judicial scrutiny. But Australia became an outlier of
a different sort.

Last year, Australia was the first jurisdiction with
substantive patent examination in which a court affirmatively said
that the country’s patent law recognizes AI-inventorship. In
that case, the judge of a Federal Court of Australia 
ruled that DABUS could be listed as an inventor after
interpreting the ordinary meaning of “inventor” under
the Australia Patent Act as not restricted to only humans. The
court also found that not recognizing AI inventorship would be
detrimental to the objective of promoting innovations.

But in the latest episode of the DABUS saga, a higher
court brought Australia back in line with the rest of the world. A
panel of judges of the Full Court of the Federal Court –
Australia’s second highest judiciary body – reversed
the lower court’s decision, relying on a line of reasoning
from 
a ruling by the High Court of Australia – the
country’s apex judiciary body – that used the phrase
“human action” to define patent eligible subject
matter. The panel also noted that the legislative history of the
Australian Patent Act shows that the “origin of entitlement
to the grant of a patent lies in human endeavor.” Applying
this framework, the Full Court held that the DABUS cannot be listed
as an inventor for the patent application, because Australian
patent law recognizes only human inventors.

For now, Australia is now aligned with the world’s other
jurisdictions. Patent offices across the world continue to confirm
that inventors must be human, which precludes AI agents from being
listed as inventors on their own. We continue to watch to whether
Thaler presses for an appeal in the High Court of Australia and in
appellate courts around the world.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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