Victor outlines below why this case is of significance.

Commissioner of Patents v Thaler (2022) 289 FCR 45 concerned a patent case involving an artificial intelligence machine. The Full Court consisting of five Justices (Allsop CJ, Nicholas, Yates, Moshinsky and Burley JJ) allowed the appeal on 13 April 2022. On 11 November 2022, the High Court refused a special leave application made by Stephen Thaler.

 “In Thaler the fascinating, and almost “science fiction” central question, was whether a device characterised as an artificial intelligence machine could be considered to be an “inventor” within the meaning ascribed to that term in the Patents Act 1990 (Cth) (the Act) and the Patents Regulations 1991 (Cth) (the Regulations).

The respondent was the applicant in a patent application entitled “Food container and devices and methods for attracting enhanced attention”. In the application, the respondent gave as the name of the inventor “DABUS” with the additional comment “[t]he invention was autonomously generated by an artificial intelligence”. DABUS was an acronym for “device for the autonomous bootstrapping of unified sentience”.

The respondent submitted that DABUS should be listed as the inventor because, whilst he accepted that the Act required a natural person to be granted a patent, in the present case he, as the natural person, derived title to the invention from the inventor pursuant to s 15(1)(c) because he owned and created DABUS, which was the inventor, and he was entitled to its output.

The Court found against the possibility of an artificial intelligence being able to be an inventor within the Act and Regulations, thus closing off the possibility of a “brave new world” of “inventors” being recognised by the law.”