Episode 76

Rarely comes a case that is truly iconoclastic, but Thaler v Commissioner of Patents is one of them1.  It smashes the cherished norm that an ‘inventor’ must be a natural person.  In a world first, Beach J held that an AI system (known as DABUS) can be an ‘inventor’ for patent law purposes2 – here, of a new kind of food container.  The approach taken falls generically into the ‘if not, why not’ category3.  One thing this case shows is the impact of objects clauses4.  Section 2A said the object of the Act is to promote ‘economic wellbeing through technological innovation …’  Not recognising the reality that AI systems already manifest autonomy in generating otherwise patentable results ‘would be the antithesis of the s 2A object’, the judge said.  Beyond the power of objects clauses, Thaler illustrates the non-stop advance of AI into the sphere of human-centric activities5.

Gordon Brysland – Tax Counsel Network

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In this episode:

Credits – Gordon Brysland, Oliver Hood & Alex Bounds.


1 Thaler [2021] FCA 879, cf Thaler [2020] EWHC 2412 (at [45-46]).

2 reg 3.2C(2)(aa) Patents Regulations 1991, cf s 15(1) Patents Act 1990.

3 An appeal to the Full Federal Court has been lodged.

4 (at [122-134]), cf Mondelez [2020] HCA 29, Marke [2021] VSC 483 (at [84]).

5 cf Northern Land Council v Quall [2020] HCA 33 (at [21]).