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Australian Federal Court Now Says AI Machines Cannot be Inventors

12 May 2022

Those following the widespread (and largely unsuccessful) attempts of the “DABUS” legal team in attempting to get an AI machine recognised as an inventor by patent offices will recall that their only real success to date came in Australia where the Federal Court decided that DABUS could be validly recognised as an inventor (see our earlier report).

However, now even that ray of light appears to have been blocked out as the Full Federal Court has reversed that decision. After substantial analysis of the statutory background to the requirement to name an inventor, the five judges found unanimously that “only a natural person can be an inventor for the purposes of the Patents Act and Regulations” and that “such an inventor must be identified for any person to be entitled to a grant of a patent”.

The judgment recognises that the filing of the application was “intended to provoke debate” as to the role of artificial intelligence and states that such debate is “important and worthwhile” and “should be attended to with some urgency”. However, the Court notes that this is a matter of policy which requires consideration of many and varied questions and is therefore not a role that the Court should take when considering statutory construction. The decision criticises the first instance judge for taking that approach.

In so far as the DABUS team’s intent was to promote such a debate, then this recognition is, perhaps, a limited success. In the UK that debate has already started, with the UK IPO recently holding a consultation (now closed to responses) on how AI should be dealt with in the patent and copyright systems. We await the outcome of that consultation to see whether any changes to the existing systems are considered necessary or desirable.

For more information contact Stephen Hodsdon or your usual J A Kemp adviser.

 

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