Thaler v Commissioner of Patents [2021] FCA 879

Federal Court of Australia

Thaler v Commissioner of Patents [2021] FCA 879 Review of: Stephen L. Thaler [2021] APO 5

File number: VID 108 of 2021

Judgment of: BEACH J

Date of judgment: 30 July 2021

Catchwords: PATENTS – artificial intelligence – machine learning – artificial neural networks – invention produced by a computer – semi-autonomous systems – concept of inventor – whether a machine can be an inventor – whether only a human can invent – device for the autonomous boot-strapping of unified sentience (DABUS) – invention created by DABUS in the form of containers, devices and methods for attracting enhanced attention – patent application – nature of inventor as distinct from patent applicant – concept of "inventor" under Patents Act 1990 (Cth) – validity of patent application where inventor a machine – relevance of human-ness of inventor to patent grant – whether decision to reject patent application valid

Legislation: Acts Interpretation Act 1901 (Cth) s 2C Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Judiciary Act 1903 (Cth) s 39B Patents Act 1990 (Cth) ss 2A, 3, 7, 18, 15, 29, 29A, 40, 45, 59, 64, 101B, 101E, 113, 138, 142, 172, 182, 185, 208; sch 1 21 Ja 1 c 3 (Statute of Monopolies) 1623 (Imp) s 6 Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No. 1) (Cth) Intellectual Property Legislation Amendment (TRIPS Protocol and Other Measures) Regulation 2015 (Cth) Patents Regulations 1991 (Cth) regs 3.1A, 3.2A, 3.2B, 3.2C, 3.18 Patent Cooperation Treaty (Washington, 19 June 1970) arts 4, 9, 27, 58 Regulations under the Patent Cooperation Treaty (Washington, 19 June 1970) rr 4, 51bis