Australian Court Rules That Yes, AI Can Be an Inventor

 The overturned ruling bucks the trend we've previously seen in the US and UK.

Photo: Ben Stansall (Getty Images)

In what can only be considered a triumph for all robot-kind, this week, a federal court has ruled that an artificially intelligent machine can, in fact, be an inventor—a decision that came after a year’s worth of legal battles across the globe.

The ruling came on the heels of a years-long quest by University of Surrey law professor Ryan Abbot, who started putting out patent applications in 17 different countries across the globe earlier this year. Abbot—whose work focuses on the intersection between AI and the law—first launched two international patent filings as part of The Artificial Inventor Project at the end of 2019. Both patents (one for an adjustable food container, and one for an emergency beacon) listed a creative neural system dubbed “DABUS” as the inventor.

The artificially intelligent inventor listed here, DABUS, was created by Dr. Stephen Thaler, who describes it as a “creativity engine” that’s capable of generating novel ideas (and inventions) based on communications between the trillions of computational neurons that it’s been outfitted with. Despite being an impressive piece of machinery, last year, the US Patent and Trademark Office (USPTO) ruled that an AI cannot be listed as the inventor in a patent application—specifically stating that under the country’s current patent laws, only “natural persons,” are allowed to be recognized. Not long after, Thaler sued the USPTO, and Abbott represented him in the suit.

More recently, the case has been caught in a case of legal limbo—with the overseeing judge suggesting that the case might be better handled by congress instead.

DABUS had issues being recognized in other countries, too. One spokesperson for the European patent office told the BBC in a 2019 interview that systems like DABUS are merely “a tool used by a human inventor,” under the country’s current laws. Australian courts initially declined to recognize AI inventors as well, noting earlier this year that much like in the US, patents can only be granted to people.

Or at least, that was Australia’s stance until Friday, when justice Jonathan Beach overturned the decision in Australia’s federal court. Per Beach’s new ruling, DABUS can neither be the applicant nor grantee for a patent—but it can be listed as the inventor. In this case, those other two roles would be filled by Thaler, DABUS’s designer.

“In my view, an inventor as recognised under the act can be an artificial intelligence system or device,” Beach wrote. “I need to grapple with the underlying idea, recognising the evolving nature of patentable inventions and their creators. We are both created and create. Why cannot our own creations also create?”

It’s not clear what made the Australian courts change their tune, but it’s possible South Africa had something to do with it. The day before Beach walked back the country’s official ruling, South Africa’s Companies and Intellectual Property Commission became the first patent office to officially recognize DABUS as an inventor of the aforementioned food container.

It’s worth pointing out here that every country has a different set of standards as part of the patent rights process; some critics have noted that it’s “not shocking” for South Africa to give the idea of an AI inventor a pass, and that “everyone should be ready,” for future patent allowances to come. So while the US and UK might have given Thalen the thumbs down on the idea, we’re still waiting to see how the patents filed in any of the other countries—including Japan, India, and Israel—will shake out. But at the very least, we know that DABUS will finally be recognized as an inventor somewhere.