Courts worldwide weigh in on whether artificial intelligence can patent inventions

In 2021, the South African Patent Office made intellectual property headlines around the world by issuing a patent filed by Dr Stephen Thaler where a device for the autonomous bootstrapping of unified sentience, Dabus, was listed as the inventor.
The issue of whether or not artificial intelligence (AI) can be listed as an inventor on a patent application is a fascinating and somewhat surreal issue that is becoming increasingly relevant given the exponential use of AI.
A seminal player in this landscape is Dr Stephen Thaler, the CEO and president of Imagination Engines. The inventor of a patent he applied for was listed as Dabus (a device for the autonomous bootstrapping of unified sentience), a type of AI system. Patent offices in the US and Europe have already rejected patent applications filed by Dr Thaler where Dabus was listed as the inventor, confirming that the patent laws in these territories do not recognise AI systems as inventors.
In 2021, the South African Patent Office made intellectual property headlines around the world by issuing a patent filed by Dr Thaler where Dabus was listed as the inventor.
However, it certainly seems that the South African Patent Office’s approach will be an exception to the rule and given that there is no substantive examination of patent applications in South Africa, it is fair to assume that the granting of this patent was of fairly limited significance.
More recently, the Australian courts have considered the same question with regard to Dr Thaler’s corresponding Australian patent application. The Australian Deputy Commissioner of Patents had originally rejected the application since no human inventor was named.
However, when this decision was taken into review, a judge of the Federal Court of Australia found that although ownership of a patent is limited to the inventor or the person who derives title from the inventor, the term “inventor” is not defined in Australian legislation. According to the court, there is nothing in the legislation that excludes an inventor from being a non-human AI device or system.
The position in Australia has been brought in line with the majority of patent office decisions now though, as when the decision of the judge was taken on appeal, the Full Court of the Federal Court of Australia reversed the decision of the lower court. The full court said that “the origin of entitlement to the grant of a patent lies in human endeavour.” In other words, an inventor ...