On 21 September 2021 the Court of Appeal handed down its judgment in THALER v COMPTROLLER GENERAL OF PATENTS TRADE MARKS AND DESIGNS  EWCA Civ 1374.
The Court of Appeal, in a split 2/1 decision dismissed Dr Thaler's appeal.
Lord Justice Arnold held in his judgment that there is no rule of law that a new intangible produced by existing tangible property is the property of the owner of the tangible property, as Dr Thaler contended, and certainly no rule that the property, contemplated by section 7(2)(b) of the Patents Act 1977, in an invention created by a machine is owned by the owner of the machine. Lord Justice Arnold also held the statutory requirements of the Act are that (i) the inventor must be a person and (ii) an applicant who is not the inventor must be able, at least in principle, to found an entitlement to apply for a patent in respect of the invention. If Dr Thaler were able to establish that the statute did not require the inventor to be a person and that, as a matter of law, he could derive his entitlement to apply for patents in respect of the inventions purely from his ownership of DABUS, then the position would be different.
Lady Justice Laing agreed with the judgment of Lord Justice Arnold.
Lord Justice Birss, on the other hand, would have allowed the appeal, holding in summary:
The judgment did not follow the findings of the Federal Court of Australia in Thaler v Commissioner of Patents  FCA 879, which held that Dr Thaler does own the rights to the DABUS inventions under Australian law. This was notwithstanding the fact that Section 7(2)(b) of the UK Patents Act 1977 inter alia confers the right to the grant of a patent to any person who by virtue of any foreign law was entitled at the time of the making of the invention to the whole of the property in it in the United Kingdom.
The Court of Appeal judgment also held that there is no requirement in the Patents Act for an applicant to name a person as the inventor, and that there may be circumstances in which the applicant cannot reasonably identify the inventor.
The judgment of the Court of Appeal leaves the current law unfit to support innovation in the AI industries, which we believe, in line with the Government's indications, must be addressed as a matter of urgency. As matters currently stand, Australia allows the patenting of AI generated inventions, as does South Africa, but the UK, which wishes to be at the forefront of these technical developments, is lagging behind.
Dr Thaler has the right to seek permission to appeal to the Supreme Court, within 28 days of the date of the Court of Appeal 's judgment.
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