The High Court of Australia has marked the end of determining whether artificial intelligence (AI) may be named as an inventor. In the recent decision of Thaler v Commissioner of Patents [2022] HCATrans 199, the High Court rejected the application for special leave to appeal filed by the applicant and upheld the Full Court of the Federal Court of Australia’s decision that only a human can be named as an inventor for an Australian patent application.
The High Court supported its ruling by emphasising that it is necessary to identify a human “inventor” in order to apply for a patent. As it was agreed that Dr Thaler was not the inventor, the High Court’s decision focuses purely on the procedural question of whether the patent application in question was validly filed for the purposes of the Patents Act 1990 (Cth). Thus, despite this element failing in the current case, the decision leaves the door open for whether the Patents Act 1990 (Cth) requires further amendment in the context of AI and modern technological inventors. On this point, the Full Courts propositions provide valuable insight, particularly:
- Whether, as a matter of policy, a person who is an inventor should be redefined to include an AI
- If so, to whom should a patent be granted in respect of its output?
- The owner of the machine upon which the AI runs;
- The developer of the AI;
- The owner of the copyright of the source code; or
- The person who inputs the data used by the AI.
- If AI is capable of being recognised as an inventor in the future, should the requirement of the inventive step be recalibrated such that it is no longer judged by reference to the knowledge and thought processes of the hypothetical uninventive skilled worker in the field?
- What continuing role might the ground of revocation for false suggestion or misrepresentation have, in circumstances where the inventor is non-human?
The High Court’s decision is aligned with nations including the United States, United Kingdom, European Union, New Zealand, Taiwan, Korea, Israel, and India, but may fuel further policy debate as to whether the Australian Government should recognise non-human inventors.
For a full reading of the case, see here.
