Michelle Mao is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

Reversing what seemed like a victory for supporters of AI-owned intellectual property, the full bench of the Federal Court of Australia has confirmed the majority view of the world: only human inventors can own patent rights to their creations.

Previously, IPilogue reported that Australia has granted patent ownership to an AI inventor. In February 2022, however, the Federal Court of Australia joined the ranks of the United States and the United Kingdom in disallowing AI to be owners of patents, even if the product is solely created by AI.

To recap, the decision was about Dr. Stephen L. Thaler’s application for his AI, DABUS, to be the patent owner of an invention titled “Food container and devices and methods for attracting enhanced attention,” a product solely created by DABUS without any human interference.

Previously, the Federal Court of Australia ruled that Australian patent law did not preclude “non-human” inventors from owning patents over their creations because no mental state of an inventor is required for an invention.

What Does This Mean in the Canadian Context?

In 2021, the Canadian Intellectual Property Office (CIPO) issued a non-compliance notice for DABUS’ patent application in Canada. While DABUS’ patent application is still developing in Canada, the recent reversal of the Australian decision will likely impact the future of patent ownership rights of AI.

In a previous IPilogue article, it was reported that the CIPO had allowed AI to retain copyright authorship to their produced work. This signals a shift in Canadian attitudes towards AI ownership of their work. This decision diverges from a recent rejection by the US Copyright Office for a request to let an AI own its work due to a lack of “human authorship.” Meanwhile, in the UK, computer-generated works receive copyright protection, but the law designates the author as “the person by whom the arrangements necessary for the creation of the work are undertaken”, implying a necessary human element as well for copyright ownership. Thus, CIPO has differentiated its approach from both the US and the UK in allowing AI to own the copyright to their works. 

However, Canada’s patent laws are still very similarly modeled after British and American patent laws, which may influence how our courts interpret future patent ownership applications on behalf of AI-created products. In Apotex Inc v Wellcome Foundation., 2002 SCC 77, the Supreme Court has already implied that the meaning of “inventor” is interpreted as a human person.

Canada has different federal legislation regarding the various aspects of intellectual property. The Copyright Act, Trademark Act, and Patent Act govern the three main types of intellectual property rights in Canada. Whether these cases and legal trends will leave Canadian intellectual property laws fragmented in their approach to non-human creators and inventors, only time can tell. Based on current trends, Canada could become the first Western nation to grant patent rights to AI. Advocacy for AI inventorship has evolved considerably since Dr. Thaler and DABUS embarked on their journey for AI patent ownership. Along with the forward-looking Canadian attitudes towards AI-owned copyright and no explicit definition of inventor in the Canadian Patent Act, it is very possible that Canada may once again choose to differentiate itself and embrace AI inventorship through AI-owned patent rights.