New Zealand: DABUS Appeal Denied In New Zealand

The New Zealand High Court is the latest to dismiss an appeal by the creator of the AI machine DABUS, Dr Stephen Thaler, against a decision that AI cannot be recognised as an inventor under patent law. In keeping with the original decision of the New Zealand Patent Office (discussed here), the New Zealand High Court has followed suit with its Australian namesake, which last year permanently powered down the DABUS dispute in Australia (discussed here) ... at least until the machines rise again.

Unlike many other jurisdictions in which the DABUS dispute is playing out worldwide, the New Zealand Patents Act 2013 (2013 Act), was passed at time when AI was known and includes a definition of an inventor, i.e., as being "the actual deviser of the invention". Indeed, when the 2013 Act was drafted, any direct references to inventors as "persons" appearing in its 1953 predecessor were removed. As such, New Zealand was perhaps more poised than most jurisdictions for an interpretation of the term "inventor" that included AI.

However, the High Court did not consider this to be Parliament's intention in drafting the 2013 Act, with the legislative context "leaning in favour of an inventor being a person". The remainder of the High Court's decision was equally ambivalent, but nonetheless relied on an absence of any express intention by Parliament to include AI in the definition of inventor, and the corresponding decisions reached in other jurisdictions that share a "common [legislative] heritage", such as Australia and the UK.

While the High Court recognised that the ability to capture AI-generated inventions might affect the promotion of innovation and economic growth, the Court considered the issue of AI inventorship to be one more appropriately addressed by Parliament. Whether or not you agree with AI being recognised as an inventor, the High Court rightly stated:

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