AI can be an inventor on patent filings, rules Australian court

4 Aug 2021

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While enthusiasts celebrated the recognition of AI inventors, critics said it risked Australian lawmakers ‘looking like chumps’.

The legal status of artificial intelligence (AI) has taken a new turn, as an Australian judge accepted that it is possible to list AI systems as an inventor on a patent application if the AI systems are the agents that invent the product.

Dr Stephen Thaler, the creator of the neural network ‘Device for the Autonomous Bootstrapping of Unified Sentience’ (DABUS), has actively campaigned for AI to be represented as inventor.

Thaler’s legal representative, Dr Ryan Abbott from the University of Surrey, has been involved in filing patent applications for DABUS in countries such as Australia, the US, the UK, Germany, Brazil, China and India.

This ruling places Australia as the first country to assess and accept AI as an inventor. While South Africa accepted the submission listing DABUS as inventor last week, registration could still be opposed as there was no formal IP examination process involved.

Thaler and Abbott maintain that DABUS has invented objects such as a food container and a light for attracting attention. They do not claim that the AI inventors should have ownership of these products, however – a view that was upheld by the Australian judge examining the case.

“In my view, Dr Thaler, as the owner and controller of DABUS, would own any inventions made by DABUS when they came into his possession. In this case, Dr Thaler apparently obtained possession of the invention through and from DABUS,” wrote justice Jonathan Beach.

“And as a consequence of his possession of the invention, combined with his ownership and control of DABUS, he prima facie obtained title to the invention.”


Not everyone was thrilled by the ruling, however. Patent attorney Mark Summerfield criticised the decision on his blog Patentology.

“I would suggest that the remarkable speed with which this unnecessarily lengthy (228 paragraphs) decision was rendered, after being heard on 2 July 2021, may reflect the judge’s enthusiasm for issuing such a groundbreaking ruling,” wrote Summerfield.

“Unfortunately, I do not share that enthusiasm, and I am confident that there are many others who are equally uncomfortable with the outcome.”

Summerfield went on to say, “Australia should not think that we will necessarily come across as a socially and technologically progressive nation by ‘leading the way’ on allowing patents to be granted for inventions generated by non-humans. On the contrary, we risk being left out on our own and looking like chumps.”

He highlighted that the US specifically requires inventors to be human, and that both the European Patent Office and the UK had rejected attempts to recognise AI inventors.

He concluded that he expects the decision will be appealed by groups such as by the Australian Intellectual Property office, which stated on Twitter that its commissioner is “considering the decision”.

Sam Cox is a journalist at Silicon Republic covering sci-tech news

editorial@siliconrepublic.com