Thaler v Commissioner of Patents [2021] FCA 879

An individual, Dr Steven Thaler, invented a Device for Autonomous Bootstrapping of Unified Sentience (DABUS), which comprised an artificial intelligence system developed to produce new ideas. An Australian patent application was filed in respect of the invention, but was rejected by the Australian Patent Office on the basis that DABUS was named as the inventor in place of a human inventor.

The question under primary consideration in Thaler was whether artificial intelligence could be an inventor within the meaning of the Patents Act 1990 (Cth) (‘the Act’) and the Patent Regulations 1991 (Cth). In this regard, the Federal Court determined that the term “inventor” is an agent noun, and that ‘an agent can be a person or thing that invents’. Accordingly, the artificial intelligence responsible for producing new ideas was considered to be a valid inventor, and further it was stated that the Act did not contain anything that would suggest otherwise.

In fact, Justice Beach also suggested that one of the objectives of the Act, which is to promote economic wellbeing through technological innovation, would be reinforced by allowing artificial intelligence to be an inventor.

One of the additional takeaways from this decision is that irrespective of whether artificial intelligence or a human is named as an inventor, a non-human inventor could not be the Applicant or Grantee of a valid Patent in accordance with the Act.

The decision in Thaler received significant media attention since it was the first decision globally n which non-humans were permitted as inventors in Patent Law.

Thaler was ultimately appealed and the Federal Court decision was overturned in 2022. However, Thaler sparked much debate in relation to the appropriateness of artificial intelligence as an inventor and the effects this may have on global patent law and practice. As technologies such as artificial intelligence become more widely used by humans to assist in creating new innovations, it is to be expected that questions regarding the validity of artificial inventorship will arise again and is likely to be the subject of further judicial consideration in future.



1 Thaler v Commissioner of Patents [2021] FCA 879 (‘Thaler’).

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