Patentability of AI-Generated Inventions in Australia

In a recent test of Australia’s patent system, IP Australia decided that a patent cannot be granted where an AI system is identified as the inventor on the basis that it is not possible to identify the patentee for the purposes of section 15(1) of the Patents Act 1990 (Cth) (Patents Act).

While the decision is consistent with patent office decisions in other jurisdictions, it may be problematic since it has the potential to disrupt investment and stifle innovation due to the uncertainty about which, if any, intellectual property rights subsist in technology created by AI systems.

An application for judicial review of the decision was recently filed in the Federal Court.[1] However, the issue of inventorship will need to form part of a broader law reform conversation focussing on patents and copyright in particular. For now, innovators utilising AI systems will need to examine whether their current practices are sufficient to ensure that ‘their’ inventions are protected.

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