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IP Australia appeals seminal AI inventorship ruling

Australia's commissioner of patents has filed an appeal against a decision to recognise an artificial intelligence tool as an inventor

The commissioner of patents in Australia has filed an appeal against a decision from the country’s Federal Court that recognised an artificial intelligence tool called DABUS as an inventor on a patent, it was announced today, August 30.

The appeal in Thaler v Commissioner of Patents was filed on Friday, August 27, in the Victoria Registry of the Federal Court of Australia and will soon be decided by the full court.

In a news release, IP Australia said: “The appeal is centered on questions of law and the interpretation of the patents legislation as it currently stands.

“The commissioner considers that the legislation is incompatible with permitting an AI to be an inventor, and that the issue is one of public importance.”

The office also stressed that the appeal did not represent a policy position from the Australian government on whether AI should or could ever be considered to be an inventor on a patent application.

The Australian patent for DABUS – which stands for Device for the Autonomous Bootstrapping of Unified Sentience – is just one of many similar applications that have been filed worldwide, some of which have already been rejected in the UK, the US and at the EPO.

Australia was the first country to judicially recognise AI inventorship on July 30 2021, two days after South Africa became the first country to issue a patent designating an AI tool as an inventor.

Justice Jonathan Beach, who handed down the judgment, had based his decision on the reasoning that the word “inventor”, an agent noun, was not defined in the Patents Act or the Patents Regulations.

Accordingly, he found, if an AI system was the agent that invented, it could be described as an inventor.

The appeal is likely to shed some light on the legislative intent behind the term inventor included in the Patents Act as well as on whether inventive step is of concern while determining AI inventorship.

Counsel will no doubt be interested to find out whether the Federal Court’s decision, which has been lauded as forward-looking, will hold water before the full court.

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