On 13 April 2022, in FEDERAL COURT OF AUSTRALIA Commissioner of Patents v Thaler  [2022] FCAFC 62 the Full Court of the Federal Court of Australia delivered its decision on appeal from the earlier decision in Thaler v Commissioner of Patents [2021] FCA 879.

In doing so, the Full Court reversed the earlier decision that “artificial Intelligence” could be the “inventor” for the basis of a patent application under Australian Law.

As anticipated, the view which prevailed in the Full Court decision is one much more reflective of a conventional view of Patent Law.

Current Law

To me, it was one of those cases where it was proper for the Court to apply the law as it is written and not, by statutory interpretation, try to overturn standing principle. The court said so expressly [at para 120] However, the Court must be cautious about approaching the task of statutory construction by reference to what it might regard as desirable policy,imputing that policy to the legislation, and then characterising that as the purpose of the legislation: Deal at [37]; Miller v Miller [2011] HCA 9; 242 CLR 446 at [29] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

 

The Court acknowledged that [at para 115] “the development of patent law since 1624 has not until now been confronted with the question of whether or not an inventor may be other than a natural person. However, as noted, the law to which we have referred has proceeded on the assumption that only a natural person could be an inventor.”

That is not surprising given the origins of Patent Law in the 1600s where the purpose of the law was to grant someone a statutory monopoly for a patent.

The Future

However, the Court acknowledged that its decision is by reference to the facts and current law and that there remains much to consider in respect of Artificial Intelligence and how it fits with the Law.

That is necessarily a jurisprudential and partly societal matter, raising questions such as:-

  • If Artificial Intelligence is to be recognised at law (not just for patents), who is responsible for it;
  • If Artificial Intelligence causes some loss or damage, who would that be dealt with;
  • Does the idea of Artificial Intelligence being recognised at Law, long term, have broader implications as to things like legal capacity, legal persons and even sovereignty?
  • Given the international commercial issues, will there not be a need for one or more international treaties to deal with it?

I expect an appeal to the High Court of Australia.

.The above was prepared for and is intended to provide a broad general overview of issues only. 19 4 2022

.It is not intended, and must not be relied upon, as definitive legal advice.