On 17 March 2023, the High Court of New Zealand issued its decision on whether ‘Device for the Autonomous Bootstrapping of United Sentience’ (DABUS), an artificial intelligence (AI) system, could be named as an inventor in a New Zealand patent application: Thaler v Commissioner of Patents [2023] NZHC 554. The High Court said that it could not.

Dr Stephen Thaler has applied for a patent in numerous countries around the world for an invention for a new type of food container and named DABUS as the inventor. The application has been refused in many countries on the basis that only humans can be named as inventors on patents. Dr Thaler has frequently contested the decisions, but has so far been unsuccessful in appeals to the courts in Australia, the UK and the US. The recent decision of the NZ courts is the latest episode in Dr Thaler’s worldwide campaign to stand-up for the rights of AI.

The question of whether DABUS could be named as the inventor on the patent application was first considered in NZ by IPONZ. In that forum, Assistant Commissioner Luiten decided to refuse the application on the basis that the Patents Act 2013 was drafted “on the assumption that an inventor is a human being” in January 2022: Stephen L. Thaler [2022] NZIPOPAT 2.

On appeal, Palmer J in the High Court of New Zealand also rejected an AI being an inventor on a NZ patent. While the Court recognised that the law does not explicitly require the inventor to be a person, what was found persuasive was the history of patent legislation in NZ. The previous legislation (the Patents Act 1953) made it clear that an inventor had to be a person. The Court did not think there was any intent for Parliament to change that position in the more recent Patents Act 2013, and saw any change to the legal position in NZ as being more appropriately reserved for Parliament.

Based on this decision, inventions generated by an AI are not considered to be eligible for patent protection in New Zealand.