‘Dabus is the Inventor’ Says Federal Court of Australia in Landmark Judgment of Thaler V. Commissioner of Patents, [2021] Fca 879.

On 30th July 2021, Federal court of Australia held that an Artificial Intelligence (AI) system can be an inventor as per the Australian Patent Act 1990. This was the first judicial determination in the world in favor of AI systems being named as inventors of a patent. As the inventive capacity of AI systems continued to evolve, one of the most vexed issues across the globe was ‘whether patent protection should be given for AI generated inventions or not?’ For the first time in the world, the Federal Court of Australia has answered this key issue.


  • Dr. Stephen Thaler (hereinafter referred to as ‘The Applicant’) is the inventor of the ‘Device for Autonomous Bootstrapping of Unified Sentience’ popularly known as ‘DABUS’. The Applicant is the owner of the copyright in the source code for ‘DABUS’. ‘DABUS’ is an AI system that generates new ideas and determines the most novel or valuable idea.
  • The Applicant filed a patent application named ‘DABUS’ as the inventor in relation to a food or beverages container’s fractal wall. ‘DABUS’ envisaged a better-quality beverage container and neural flame for search-and-rescue processes entirely of its own accord.
  • The Deputy Commissioner of Patents had determined that the Applicant’s patent application did not comply with the Patents Regulations 1991 and hence the Deputy Commissioner rejected the patent application of the Applicant on the ground that an AI system could not be an inventor.
  • Thereafter, the Applicant sought judicial review of the decision by the Deputy Commissioner of Patents.


The court observed that the ordinary meaning of ‘inventor’ does not exclude non-humans because there is no specific provision in the Australian Patent Act that expressly refutes the proposition that an AI system can be an inventor. The court further observed that ‘AI as an inventor is consistent with the Australian Patent Act’ as ordinary meaning of inventor as not excluding non-humans inventors is consistent with the objects of the Patent Act. Further, not recognizing the reality of AI inventorship could produce inefficiency if not logical difficulties, such as persons not responsible for an invention could be recognized and rewarded without having contributed significantly to the inventive process, and this would be the antithesis of the objects of the Australian Patent Act. The court interpreted the applicable sections of the Australian Patent Act and made quite a juggernaut observation, such as

  • There is no specific provision in the Australian Patent Act that expressly refutes the proposition that an artificial intelligence system can be an inventor.
  • There is no specific aspect of Australian Patent Law, unlike copyright law involving the requirement for a human author or the existence of moral rights, that would drive the construction of the Patent Act as excluding non-human inventors.
  • The word ‘inventor’ is an agent noun, in which the suffix ‘or’ or ‘er’ indicates that the noun describes the agent that does the act referred to by the verb to which the suffix is attached. ‘Computer’, ‘controller’, ‘regulator’, ‘distributor’, ‘collector’, ‘lawnmower’ and ‘dishwasher’ are all agent nouns. As each example demonstrates, the agent can be a person or a thing. Accordingly, if an artificial intelligence system is the agent which invents, it can be described as an ‘inventor’.
  •  The term ‘manner of manufacture’, the concept of ‘inventor’ should be flexible and capable of evolution.

The court also highlighted the fact that “only a human or other legal person can be an owner, or patentee. That, of course, includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human. An inventor may be an artificial intelligence system, but in such a circumstance could not be the owner, controller or patentee of the patentable invention.”


‘DABUS’ could be depicted as self-organizing as a cumulative result of algorithms collaboratively generating complexity. It generates novel patterns of information rather than simply associating patterns and is capable of adapting to new scenarios without requiring additional human input. ‘DABUS’ is also a self- assembling software. So, it is not just a human generated software program that produces a spectrum of possible solutions to a problem combined with a filtering algorithm to optimize the outcome.

The Federal court of Australia’s decision follows the recent decision of Intellectual property officials in South Africa to award a patent that names AI ‘DABUS’ as the inventor of a product and the AI’s owner as the patent’s owner.

It is a well-known fact that AI is constantly evolving and will probably create many inventions in the future. If AI developers can’t protect these creations, they will be accessible to everyone. In this case, the creators of artificial intelligence will not have a chance for any profit, and therefore, they may be less interested in creating such inventions. The decision of the Federal Court of Australia in Landmark Judgment of Thaler vs. Commissioner of Patents, [2021] FCA 879 was highly welcomed across the globe.

The status quo is no longer suitable for the present scanio and can put investment in AI at risk. Also, naming the creator of the AI system as the inventor will be legally risky, as they have not substantially contributed to what the AI had created and would therefore amount to violating the essence of the Patent Law. With the increasing use of AI in R&D to discover new drug compounds and repurpose drugs, there may an invention that qualifies for a patent but not a person who qualifies as an inventor.

Australia and South Africa serve as an example to the rest of the world to think that how good it is to encourage the use of AI to generate human benefits because such decisions encourage people to make, develop and use AI to generate socially valuable innovation.

And it won’t be wrong to say ‘It’s the era of DABUS’!

About Swagita Pandey Tewari 15 Articles
Swagita is a young professional intrigued by and interested in the fields of IPR and Entertainment laws. She is very adept at Intellectual Property Laws specially the Trademarks. Currently, she is working with a leading Law Firm based in New Delhi. She completed her Bachelor of Laws – B. Com LL.B. (Hons.) from UPES in the year 2020. She spent most of her time working round the clock on trademark cases for various clients. She loves networking, debating, and communicating – this probably isn't surprising coming from a lawyer. In her leisure time she prefers to Think–Pair–Share with budding lawyers or just Netflix & Chill.She graduated in B. Com LL.B. (Hons.) from the School of Law, UPES, Dehradun. She is very adept at Trademark laws. Her straightforward, easy to deal with and forward-looking view makes her leader at heart and a winner in spirit.

1 Comment

1 Trackback / Pingback

  1. Australian Court rules in the favor of DABUS – The IP Press

Leave a Reply

Your email address will not be published.