Recently, the Australian Federal Court overturned a previous decision from Thaler v Commissioner of Patents  regarding Artificial Intelligence (AI) Technology and patents.
According to the court, AI Technology cannot be credited with ownership of an invention. This is a landmark decision that aligns Australia with the majority of the global community’s stance on Al Technology and ownership.
The main considerations when questioning the ownership rights of AI systems on patents include:
- A deep understanding of AI technology
- The progression of the case prior to the recent decision
- How the decision may impact our relationship with AI in the future
- On a global scale, where does Australia stand regarding AI?
The recent decision is likely to set the tone for Australia’s regulatory approach towards AI technology. As a result, the case has drawn attention to the increased need for greater discourse and global resolutions regarding the rights and limitations we are willing to give to AI technology systems.
What Is Al Technology?
Artificial intelligence or ‘AI’, is precisely what the name implies – it consists of technology that imitates human intelligence and is able to do tasks that a human would generally perform.
Most of us interact with AI technology on a daily basis without giving it much thought. The autocorrect on the last text you sent, the advertisement related to something you only just looked up or the last time you had an issue with something online and chatted with a ‘virtual assistant’ through a business’s webpage – these are all instances where you had been utilising AI technology.
AI technology continues to develop and achieve remarkable milestones, however, our laws and regulations have not yet caught up to the fast-paced nature of technological advances.
We saw this in Thaler v Commissioner of Patents which disputed AI ownership in Australia. So, let’s have a closer look at the issues within this case.
Thaler v Commissioner of Patents 
In Thaler v Commissioner of Patents, Dr Stephen Thaler attempted to have a patent registered under the name ‘DABUS’.
DABUS stands for Device for the Autonomous Bootstrapping of Unified Sentience. DABUS is an artificially intelligent machine that is able to create inventions on its own. Dr Thaler is the inventor of DABUS and applied for the patent on behalf of DABUS, hoping the AI would be recognised as the inventor instead of him.
The application was then rejected on the basis of Dr Thaler listing DABUS as the inventor as opposed to just himself. The commission stated that an application for a patent needs to have the name of a real person.
Dr Thaler disagreed and took the matter before the courts, raising the issue of whether an inventor (in the context of a patent application) needed to be a natural person or not.
What Was The Court’s Initial Ruling?
Initially, the court ruled in favour of Dr Thaler and DABUS. The matter was decided by Justice Beach who stated there was no provision in the Patents Act 1990 (Cth) that demanded an inventor be a natural human being.
Justice Beach also took into consideration the active role AI technology plays in the pharmaceutical industry as AI technology is increasingly used to develop modern medicine, noting the requirement to maintain a broader definition of the word ‘inventor’.
Therefore, the court decided that DABUS could, in fact, be listed as an inventor. This was a landmark ruling at the time, as it was largely unheard of for an Al system to be credited as the inventor of the patent.
So, Can An AI System Have A Patent Issued To Them?
However, the Commissioner of Patents appealed the decision and in 2022, the judgment made by Justice Beach in Thaler in 2021 was overturned by the full Federal Court. This final judgment reasoned that a patent can only be owned by a human inventor or someone claiming through the inventor.
The court emphasised the human endeavour aspect of owning a patent, where it reinforces the traditional idea of an invention resulting from a human being’s desire to innovate. As such, the decision makes no allowances for AI systems to be recognised as the inventor of a patent anytime soon.
What Will This Mean For The Future?
The case has sparked much needed debate around the issue of laws and AI technology. The current legal system is not built to handle complex technological matters, such as the potential rights of artificial intelligence systems.
Currently, anything that has been created as a result of AI technology cannot be credited to the technological system itself, but the owner of said systems.
So far, the Australian legal system has simply reacted to the technological advancements that have occurred in recent years. However, if the laws are going to work to serve society, then a much more proactive approach is required.
What About The Rest Of The World?
Similarly, the United States, United Kingdom and Europe all rejected Dr Thaler’s application for DABUS to be recognised as the inventor of the patent.
South Africa, however, granted DABUS recognition as the owner of a patent, alongside Dr Thaler, in 2021. In South Africa, the matter did not progress through the courts, but rather, the application made was simply accepted.
Currently, South Africa remains the only nation that has granted AI technology recognition for a patent.
As a result of their decision to go against the grain, South Africa has received both critique and support.
In granting AI credit as one of the inventors, South Africa may encourage more technological creations. The decision can act as an incentive for creators of AI technologies to bring their inventions forward into society as their systems are able to access recognition. However, there is still great potential to explore the technology further and much we don’t know about it.
Ultimately, granting AI technology functions such as being named the owner of a patent is a topic that is debated globally. As a society, granting rights and credit to systems of technology is a largely new position we find ourselves in.
As we utilise more of AI technology, the legislation will need to progress and adapt to keep up with it- whether it’s in favour of ownership or against it.
Dr Thaler’s persistence in pursuing inventor credits for DABUS has triggered much needed discourse around AI Technology and the law. The case further highlights the ever increasing complexity of AI law globally.
If you have any queries regarding patents and copyright, or anything around Intellectual Property generally, our expert lawyers would be happy to help. Reach us at 1800 730 617 or firstname.lastname@example.org for a free, no-obligations chat.
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