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In both the US and the UK, patent offices have refused to allow applications filed by Dr Stephen Thaler to proceed, on the basis that the named inventor – an ‘AI’ machine dubbed DABUS – is not a human being.  In the first article in this series I looked at the US approach to the role of the inventor in patent law and practice, and at the recent decision of Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) upholding the USPTO’s decision.  In the second, I discussed the split decision of the Court of Appeal of England and Wales, which upheld (by a 2-1 majority) the decisions of the UK Intellectual Property Office (UKIPO) and the High Court.

In Australia, the Patent Office also refused to allow a corresponding application by Dr Thaler to proceed.  In contrast to the US and the UK, however, that decision was overturned by Justice Beach in the Federal Court.  The Commissioner of Patents has now appealed that ruling to a Full Bench of the Court (case no. VID496/2021).  In this article, I will be looking at the potential implications of the recent US and UK decision for the conduct and outcome of the appeal in Australia.

It should be said at the outset that the US law is very different to that of Australia, and it is therefore unlikely that anything in Judge Brinkema’s legal reasoning will be influential upon the Full Court.  It has also become apparent through the UK High Court and Court of Appeal decisions that while the UK law shares some similarities with the corresponding provisions of the Australian Patents Act 1990, there are also some significant differences.  Even so, there are aspects of the reasoning of Lord Justice Arnold in the Court of Appeal that the Australian appeals court may consider persuasive, and that could therefore influence the outcome here.

There are two key questions likely to be addressed in the appeal, both of which also arose in the UK, although only the first received substantive attention in the US.  These are:

1. Can DABUS, as an ‘AI’ machine and not a human being, validly be named as an inventor on a patent application?
2. Can Dr Thaler, not being (at his own insistence) the inventor, establish a proper legal basis for entitlement to the grant of patents on inventions said to be generated by DABUS?

I shall look at each of these questions in turn.

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In the first article in this series I looked at the US approach to the role of the inventor in patent law and practice, and at the recent decision of Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) upholding the USPTO’s decision to refuse two patent applications on the basis that the ‘AI’ machine DABUS is not a human being and therefore cannot be an inventor under US law (Stephen Thaler v Andrew Hirshfeld and the US Patent and Trademark Office, Mem. Op. [PDF 998kB]).  In this article, I shall turn my attention to the split decision of the Court of Appeal of England and Wales in Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374, in which parallel efforts to name DABUS as an inventor have also been rejected, with Thaler’s appeal being dismissed despite a weighty dissent by Lord Justice Birss.

The issues in the UK case are somewhat different, and more nuanced, than in the US.  While all three judges on the Court of Appeal agreed that an ‘inventor’ under the UK law must be a human being, the fact that DABUS is a machine was not immediately determinative of the outcome.  An inventor is not required to play any active role in the filing, prosecution, or grant of a patent in the UK, so arguably there remains a question as to whether an application can be permitted to proceed even if a legally valid inventor has not been – or cannot be – named.  In the event, the answer to this question turned on whether or not the applicant (i.e. Dr Thaler) could satisfy statutory requirements to name the inventor, and to indicate how he is entitled to be granted patents on inventions that he did not claim to have devised himself.

Lord Justice Arnold and Lord Justice Birss disagreed on the outcome, with the tie being broken by Lady Justice Elisabeth Laing, agreeing with Arnold LJ that the DABUS applications should be deemed withdrawn. 

Arnold LJ is the preeminent patent law specialist on the Court of Appeal.  He was elevated to the Court of Appeal in 2019, after being appointed to the High Court in 2008, and as Judge in Charge of the Patents Court in April 2013.  In March 2016 he was appointed as an External Member of the Enlarged Board of Appeal of the European Patent Office.  Impressive as this is, however, Birss LJ is no lightweight.  In 2010 he was appointed as a Specialist Circuit Judge sitting in what was then the Patents County Court.  In 2013 he was appointed to the High Court, and in 2019 he filled the place formerly held by Arnold LJ as Judge in Charge of the Patents Court, before being elevated to the Court of Appeal in January 2021.

So this is a case in which the dissenting judgment must be taken seriously, especially with the possibility still open of an appeal to the Supreme Court.  But for now, at least, the balance of the law remains against DABUS in the UK.

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On 27 August 2021, the Commissioner of Patents lodged an appeal (case no. VID496/2021) against the decision of Justice Beach in the Federal Court of Australia finding that the ‘AI’ machine known as DABUS could be named as sole inventor on an Australian patent application.  Unusually, and presumably in recognition of the media and public interest generated by this case, IP Australia took the step of announcing the filing of the appeal, while emphasising that ‘[t]he appeal is centred on questions of law and the interpretation of the patents legislation as it currently stands’ and that ‘[t]he decision to appeal does not represent a policy position by the Australian Government on whether AI should or could ever be considered an inventor on a patent application.’  The appeal will most likely be heard by a Full Bench of the Federal Court comprising three judges, although in rare cases deemed sufficiently significant a five judge panel may be assigned.  A hearing could take place as early as November this year, but at this stage it seems more likely to be scheduled for early in 2022.

In the meantime, however, parallel test cases initiated by Surrey University Professor Ryan Abbott’s Artificial Inventor Project have been making their way through the US and UK courts.  On 2 September 2021, Judge Leonie M Brinkema in the United States District Court for the Eastern District of Virginia (‘EDVA’) rejected Dr Stephen Thaler’s appeal against the USPTO’s decision to refuse two patent applications on the basis that DABUS is not a human being and therefore cannot be an inventor under US law (Stephen Thaler v Andrew Hirshfeld and the US Patent and Trademark Office, Mem. Op. [PDF 998kB]).  And on 21 September 2021, a majority of the Court of Appeal of England and Wales (Lord Justice Arnold and Lady Justice Elisabeth Laing, Lord Justice Birss dissenting) upheld a decision of the High Court which agreed with the UK Intellectual Property Office (UKIPO) that Thaler’s applications should be deemed withdrawn because of his failure to identify a natural person as inventor (Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374).

These cases are, of course, of interest because they concern the fascinating question of whether non-human machines can be inventors for the purposes of obtaining patent.  But they are also interesting for what they reveal about the differences between the treatment of inventors under US and UK law.  In the US the inventor is central and indispensable – a position that arguably derives ultimately from the Constitutional authority for Congress to make laws ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’.  In the UK, however – and in the view of Birss LJ in particular – the identity of the inventor is almost irrelevant in the majority of patents applied for, prosecuted and granted.

I will cover these latest developments in the DABUS saga over a series of three articles.  In this first article, I will look at the approach taken to the role of the inventor in the US, how it differs from other jurisdictions, and the recent decision from the EDVA.  The second article will cover the split decision in the UK, and how the differing opinions of eminent patent jurists Arnold LJ and Birss LJ stack up.  Finally, in the third part I will look at where Australia sits, and consider whether either of the US and UK decisions may be of any relevance in the upcoming Full Court appeal.

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In a world first, a judge of the Federal Court of Australia has found that artificial intelligence is capable of being an “inventor” for the purposes of the Australian patent regime. Find out more about Justice Beach’s decision.

After 13 years of venture investing, and 30 years in tech, I’m going “all-in” on crypto and am joining CoinFund. Please read on...