30 August 2021

On 30 July 2021, the Federal Court found in Thaler v Commissioner of Patents [2021] FCA 879 that, for the purposes of the Patents Act 1990 (Cth), an artificial intelligence (AI) system could be named as an inventor on a patent application. This decision overturned an earlier decision of IP Australia that only a human can be named as an inventor for an Australian patent.

The Commissioner of Patents has decided to appeal the Federal Court’s decision.

The appeal is centred 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 decision to appeal does not represent a policy position by the Australian Government on whether AI should or could ever be considered an inventor on a patent application. The Government is committed to ensuring that all Australians benefit from emerging AI technology, through its June 2021 AI action plan.

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