AI as an inventor: has the Federal Court of Australia erred in DABUS?

The emergence of advanced Artificial Intelligence (AI) technologies has caused an international debate as to whether inventions generated by AI technology without human intervention should be protected under patent law and who should own them. These questions have been discussed in a recent Federal Court of Australia decision in Thaler v Commissioner of Patents. In that judgment, Beach J recognised that some AI has the ability to autonomously invent and that such AI-generated inventions could be protected under patent law. His Honour held that, in such instances, an AI system could and should be listed as an inventor in a patent application. This article challenges the decision by arguing that, even in the case of the most sophisticated AI systems, these systems are not autonomous in the inventive process as humans provide significant contributions to the very system that leads to the inventive output. Secondly, I contend that the discussion on the need of patent protection for AI-generated inventions (if it were possible at all) is misplaced and not sufficiently comprehensive. Finally, the expanded application of the Patents Act 1990 (Cth), and especially s 15(1), to accommodate 'AI inventors', is an over-reach that is not consistent with the current law. The article recommends that the AI inventorship question should be decided not by courts, but by a policy making body and all interested stakeholders should be engaged in the discussion on this important matter.