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.