On Friday 11 November 2022, three judges of the High Court of Australia (Gordon, Edelman and Gleeson JJ) refused – with costs – Stephen Thaler’s application for special leave to appeal a decision of the Full Court of the Federal Court of Australia determining that the (alleged) ‘AI inventor’ DABUS cannot be named as an inventor for the purposes of applying for a patent in Australia. This brings to an end the efforts of Dr Thaler – and his ‘sponsor’, Artificial Inventor Project leader Professor Ryan Abbott – to achieve recognition for machine inventors under Australian law via the courts. I have long argued that even if machines are capable of autonomous invention without human involvement (which remains, for the present, a dubious claim), it is far from obvious that granting patents for machine-generated inventions is economically or socially desirable. The High Court’s refusal to weigh-in at this time places the issue back in the hands of the legislature to determine whether any change to the law is required. However, any reforms should be preceded by a proper enquiry into the pros and cons, including consultation with experts, interested stakeholders, and the wider public.
To be fair, the High Court did not appear to completely shut the door on patents being granted for machine-generated inventions under the existing law. The judges who heard Thaler’s application seemed open to the possibility that a human inventor might be identified in such cases, or perhaps that there might be no inventor but that someone might nonetheless be entitled to obtain a patent on the invention. However, this particular case provides the Court with no factual basis to consider such alternative options, and the judges therefore did not consider it a suitable case in which to grant special leave to appeal.