Around this time last year, the National Artificial Intelligence Centre, then a branch of CSIRO but now operating under the Department of Industry, Science and Resources, released the AI Ecosystems Report 2023. The report highlights the key artificial intelligence areas Australian innovators should pursue to become globally competitive, including the livestock, horticulture and medical technologies industries. Also highlighted is the need for inventors to pursue intellectual property protection regarding their AI inventions – patents in particular. I broke down what the report had to say about AI and patents in Australia in an article I published last December.
Since then, there have been a few notable events in the Australian AI landscape, among the most prominent being the federal government’s ten voluntary AI guardrails. These guardrails aim to guide organisations toward the safe and ethical use of AI and smooth a transition to the proposed ten mandatory guardrails, which are not yet in effect. Other jurisdictions around the world, such as the EU, Canada, and Colorado, have all recently passed regulations regarding the use of AI.
AI Tech Moves Fast
2024 has seen an explosion of new AI tools and technologies. In 2023, users had to seek out AI toolsets; by late 2024, AI had been integrated into ubiquitous social media, search and hardware platforms. A wide variety of specialised, powerful AI toolsets are now available to assist in the workflows of various industries, from software engineering to law (though only with the occasional flub, which I can attest to as someone who tried to follow an AI-drafted recipe).
The Law… Doesn’t
In my previous article, I discussed the difficulties in patenting AI inventions and computer-based inventions in Australia more generally. The key Australian legal case to watch in this sphere is the proceedings of Aristocrat Technologies Australia Pty Ltd, whose saga has been ongoing since 2018 (MBIP Senior Counsel Phil recently wrote about this case). At the time of writing my last article, an interesting UK High Court case (Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks) had recently found that certain AI inventions were patentable under certain conditions. This decision was soon appealed by the Comptroller-General, who had initially rejected the patentability of the Emotional Perception AI invention. The appeal was heard in May 2024 and upheld, the Court of Appeal stating that the Emotional Perception invention was a computer software program and should be assessed as such. Emotional Perception has indicated that they will appeal this decision.
Where Does This Leave Australian AI Applications?
As I wrote in the previous article, Australia is not bound by UK decisions; however, they are closely observed. In Australia, patentability is determined based on solving a technical problem with a technical solution, which typically excludes pure software inventions because they are merely a use of existing technical products (i.e., computer hardware). The initial Emotional Perception UK High Court result may have meant a shift in how such things are assessed; however, with that decision being reversed on appeal, things are likely to stay as they have been for some time. That means that the patentability of AI and computer-implemented inventions remains in their ability to affect technical outcomes such as operating a machine or increasing the effectiveness of a computer.
For additional information or advice relating to patents and AI inventions, please contact one of our experienced Attorneys.
