Australian Federal Court recognises AI inventor

03 August 2021

An artificial intelligence (AI) system has been recognised for the first time as the inventor on a patent application in the decision of Thaler v Commissioner of Patents [2021] FCA 879, delivered by the Australian Federal Court on 30 July 2021. Australia is now the first and only country in the world to legally recognise AI inventors.

The main obstacle to permitting non-human inventors has historically been seen to be the issue of patent ownership: a machine cannot own a patent or have any title to an invention it supposedly creates. The alternative, letting a person own a patent for the machine’s invention, is only possible if the person derives title to the invention from the machine. But can a person derive from a machine a title which it does not have in the first place?

Justice Beach, who presided over the case, answered yes. His Honour argued that the established principles of property law allow a person who owns an AI machine to have title to what the machine produces, in the same way in which a person who owns land has title to the fruit of the land.

Nothing else in the existing patent legislation was found to be inconsistent with expanding the meaning of “inventor” to include a person or a thing, in the same way that words such as “dishwasher” and “computer” have evolved.

From a policy perspective, his Honour noted that failure to expand the meaning of “inventor” would inhibit innovation in scientific fields (such as pharmaceuticals research) where AI is increasingly being put to use.

This is a surprising outcome, especially since courts and patent offices in Europe, the UK, and the US have all refused to recognise non-human inventors. It’s likely that the decision will be appealed, so this is probably not the last word on non-human inventors.