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Snapshot

  • In a decision that has received much media attention, the Federal Court found that an artificial intelligence (AI) system can be an inventor of a patent.
  • The Court also held that a non-human inventor cannot be the owner of a patent.
  • The availability of patent protection for inventions created by AI is controversial.
  • Law reform is required to deal with the ever increasing use of AI systems in a wide range of industries, both nationally and  internationally.

In a worldwide, ground-breaking decision of the Federal Court (Thaler v Commissioner of Patents [2021] FCA 879 (‘Thaler’)), it was determined that inventors of patentable inventions do not need to be human. Beach J held that DABUS, an artificial intelligence (‘AI’) system, was the inventor of the subject of the patent application. The Deputy Commissioner of Patents had rejected the application filed by Dr Thaler naming DABUS as the inventor, because the application failed to name a human inventor.

Background

Dr Stephen Thaler is the inventor of the Device for Autonomous Bootstrapping of Unified Sentience (‘DABUS’). At its core, DABUS is software described as ‘an artificial intelligence system that incorporates artificial neural networks’ (at [8]). The invention the subject of the patent application is the output of the processes of the software. While Dr Thaler is the applicant for the patent, he is not the inventor. In addition to being the copyright owner of the DABUS source code, Dr Thaler was acknowledged as the owner and operator of the computer used to operate DABUS.

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