Artificial intelligence deemed not a person and not an inventor under New Zealand law

The New Zealand Assistant Commissioner of Patents has given short shrift to the bid of Dr Stephen Thaler to have an artificial intelligence (AI) listed as the inventor for patent application number 776029 in Stephen L. Thaler [2022] NZIPOPAT 2.

In a case which largely follows those in other jurisdictions, the Assistant Commissioner interpreted the provisions of the Patents Act 2013 in determining that as the AI is not a person, it does not qualify as an inventor for the purposes of the Act.

Correspondingly, Dr Thaler’s request to be listed as the Applicant on the basis of being entitled to grant by way of “accession, first possession and / or possessory title” was not accepted.


In reaching this conclusion, the Assistant Commissioner reiterated and agreed with portions of the examination reports issued against the application. These included reference to sections 3, 22, 177 and subpart 7 of the Patents Act 2013 which explicitly refer to a “person”.

The key aspect of the Assistant Commissioner’s reasoning regarding the question of inventorship is as follows:

If the legislators had intended to allow granting of patents in New Zealand for inventions devised solely by non-humans such as artificial intelligences, or life forms other than human beings, they would have drafted the Act to accommodate these possibilities specifically and explicitly. They did not do so. It would be inappropriate for the Commissioner to ignore this fact and decide a case as though they should have done so.”

Similar decisions were reached (notwithstanding appeal) in the United States and the United Kingdom which the New Zealand Assistant Commissioner referred to. On the other hand, Beech J in the Federal Court of Australia found in favour of Dr Thaler. However, that decision is now under appeal.

Appeal?

On the basis of the appeals in other jurisdictions, it would not be surprising to see this decision appealed by Dr Thaler. However, the typical reluctance of New Zealand Courts to intervene in matters of IP policy (eg. Pharmac and Pfizer), coupled with the weight of the majority of other decisions around the world likely means that any appeal would face serious challenges. 

Jesse Strafford - February 2022
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