The High Court of Australia has refused Stephen Thaler’s application for special leave to appeal the Full Court decision[1] that a device characterised as an artificial intelligence machine cannot be considered an ‘inventor’ within the meaning of the Patents Act 1990. Our analysis of the Full Court decision can be found here.
As the High Court of Australia is the highest court in the Australian judicial system, this concludes the Australian chapter of the DABUS debate on whether an AI machine can be named as an inventor on a patent application.
As previously reported, successful special leave applications are relatively rare, as the High Court must be satisfied that the appeal involves a question of general principle of law sufficient to warrant the grant of special leave or be in the public interest.
Thaler’s case has proceeded on the basis that an AI machine named DABUS is the sole inventor of the inventions claimed in Thaler’s application. This was an agreed fact and common ground between the parties. Hence, there has been no reason for the courts to consider whether DABUS was in fact an inventor as alleged by Stephen Thaler, or whether a natural person could be an inventor or joint inventor in this case.
It appears that the sole purpose of Thaler’s application is to test the theoretical question of whether a patent can be granted to an application naming a machine as a sole inventor. As observed by MS S.J. Goddard, SC (appearing for the Commissioner of Patents) in the transcript of the special leave hearing, this question is “self-generated by the applicant worldwide, so far without much success. To create a test case, we would say, out of a theoretical question of law and promote that worldwide does not elevate the question to a matter of public importance”.
Indeed, the High Court judges were reluctant to consider this theoretical question without the ability to interrogate the underlying facts. Consequently, the High Court considered that this was not the ‘appropriate vehicle’ to consider the questions of principle sought to be agitated by the Thaler application, and refused Thaler’s application for special leave to appeal.
