Can artificial intelligence legally be an inventor?

Stephen Thaler is seeking a patent for a new type of food container.
Photo: RNZ

An American computer scientist wants New Zealand’s courts to decide whether AI can legally be an inventor in a global test case next week.

Stephen Thaler is seeking a patent for a new type of food container.

The sticking point is he named his artificial intelligence system, called DABUS, as the inventor.

The Patent Office turned his application down in 2022, and the High Court agreed, with both saying an “inventor” had to be human.

Thaler was set to challenge that in the Court of Appeal on February 24.

His lawyer Clive Elliott KC said when Thaler filled out his application for a patent, he was simply stating the truth.

“He didn’t actually invent this food container, it was his machine,” he said.

“He invented what he calls an autonomous invention machine, in other words, an AI system which is itself able to invent.”

But in its 2023 decision, the High Court said the law in New Zealand did not allow for DABUS to get the credit.

“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,” it said.

But Elliot said New Zealand’s Patents Act was only passed in 2013 so parliament knew about artificial intelligence when they created it – and did not exclude it.

Auckland University professor Alex Sims says NZ faces the risk of being left behind.
Photo: Supplied

Auckland University law professor and intellectual property expert Alex Sims said beyond the technicalities of the case, there was a bigger picture about whether AI could truly be an inventor.

“What AI does is it’s hoovering up human creativity and then it’s using that to produce something. So some people would actually argue that it’s not being creative because it’s all premised on what has…

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