The High Court of Australia has refused an application for special leave to appeal the Full Court of the Federal Court of Australia’s decision that an artificial intelligence system can not be named as an inventor in a patent application. Anthony Selleck reviews the High Court’s decision.

We have been following the Australian arm of a multi-jurisdictional test case about whether an artificial intelligence (AI) can be an “inventor” for the purposes of patent law. Following on from the decision of the Full Court of the Federal Court of Australia in April 2022 that the Patents Act 1990 requires a human being to be named in a patent application as an inventor, the High Court of Australia has now refused to grant the Applicant (Dr Stephen Thaler, inventor of the DABUS AI system) special leave to appeal the Full Court’s decision.

This was Dr Thaler’s final avenue of appeal. As such, the Full Court’s decision is the last word on the issue of AI inventors in Australia.

We view the decision as authority for the proposition that Australian patent applications must name a human inventor, or are at risk of lapsing.

Why was the special leave to appeal refused?

The High Court’s refusal to grant special leave to appeal was based more on technical legal grounds rather than conclusively deciding whether an AI can truly “invent” something that could be the subject of a patent application. In particular, the Court was of the opinion that because of the way the patent application was filed and the case argued in the lower courts, it was not an appropriate vehicle to consider the questions of principle that the Applicant sought to agitate.

What could happen next?

Although we see the High Court’s decision as unequivocal in respect of the Patents Act as it currently stands, it is not to say that the broader policy debate surrounding AI and intellectual property is over. Indeed, the decision brings into focus the issue of whether the current intellectual property regime (including the patent system) is in need of reform, or a wholly new regime is needed to better protect the developers of AI systems and the results that those systems generate.