Australia’s intelligent approach to artificial intelligence inventions


An Australian court has provided a clear signal that inventions derived from machine learning activities can be subject to valid patent applications, provided they satisfy the regular indicia of inventiveness and novelty, whilst lacking a human inventor.

In Thaler v. Commissioner of Patents [2021] FCA 879, Justice Beach adopted an expansive view of the Patents Act, to hold that the concept of inventor can include, within its ambit, the notion of a suitably programmed computational device.

It is evident from the design of advanced AI systems such as Alphafold and AlphaGo, that the frontier of machine learning systems is in a continued state of rapid evolution. Whilst his honour spent significant portions of the judgement attempting to define the evolving concept of Artificial Intelligence, he was clear in holding that the innovative product of such systems can be subject to protection, whilst simultaneously lacking a human “inventor”.

In a distinct recognition of the importance of such advances to a society, his honour noted at [56]:

Now I have just dealt with one field of scientific inquiry of interest to patent lawyers.  But the examples can be multiplied.  But what this all indicates is that no narrow view should be taken as to the concept of “inventor”.  And to do so would inhibit innovation not just in the field of computer science but all other scientific fields which may benefit from the output of an artificial intelligence system.

The contrast between this liberal interpretation of our Patents Act’s application to machine learning inventions, as compared with the courts lack of clarity in the general field of software type of inventions is quite stark. However, the decision provides clear directions to the Australian Patent Office that AI advances should be readily patentable.

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