Artificial Intelligence can be an inventor in Australia

In a ground-breaking decision (Thaler v Commissioner of Patents [2021] FCA 879), Justice Beach of the Federal Court of Australia found that the current Australian patents legislation does not require a human inventor for a patent application to be valid.

In his decision, Beach J found:

“in my view an artificial intelligence system can be an inventor for the purposes of the Act. First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion and

“an inventor as recognised under the Act can be an artificial intelligence system or device”,

asserting that such a finding is consistent with the legislation and with promoting innovation.

The above notwithstanding, Beach J noted that the legislation requires that an applicant must be a legal person, which precludes a non-human inventor from being either an applicant for a patent or a patentee of a granted patent.

It remains to be seen whether this decision will prompt further applications to be filed that list artificial intelligence systems as inventors, whether the Australian Patent Office appeals the decision, and whether such a decision will stimulate any proposals to the legislation to require an inventor to be a natural person.

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