Whether AI can be an “inventor” was the key issue in an important recent ruling of the Canadian Patent Appeal Board (the “PAB”). In Thaler, Stephen L. (Re), 2025 CACP 8, the PAB had to decide whether Canadian Patent Application No. 3,137,161, which identified as the sole inventor of its two underlying inventions “Device for the Autonomous Bootstrapping of Unified Sentience” (“DABUS”), rather than a human being, satisfied the requirements for a patent to be granted under Canadian patent law.
It’s a Bird… it’s a Plane… it’s an AI System?
Canadian Patent Application No. 3,137,161, which relates to a fractal-based food container and a flashing emergency beacon (the “161 Application”), is the first – and perhaps the last – of its kind. What differentiates the 161 Application from so many other patent applications is not the ingenuity of its underlying inventions, but that its listed inventor, DABUS, is an AI system.
DABUS was developed by Stephen Thaler, a computer scientist who has pursued intellectual property protection in various jurisdictions for inventions and works generated by his machines. An example is the application for copyright protection in the U.S. of an artwork entitled “A Recent Entrance to Paradise” that was created by Dr. Thaler’s “Creativity Machine”.
In 2018, Dr. Thaler had filed for patent protection in multiple jurisdictions worldwide, naming DABUS as the sole inventor and himself as the inventor’s legal representative, aiming to challenge and expand the legal definition of “inventorship” under patent law.
Marching to the Same Drum
In response to Dr. Thaler’s unprecedented patent applications, courts and patent offices in a series of worldwide jurisdictions – most notably the United States, the UK, the European Patent Office and Australia – have in recent years rejected the proposition that an AI system can be recognized as a named inventor.
Through its decision in the matter of the 161 Application, the PAB – analogous to everybody’s favorite group dancing classic – “followed the leaders”, aligning Canada with the global trend by ruling that only humans can be inventors under Canadian patent law.
The Statutory Interpretation of “Inventor” as a Compass
In its decision, the PAB provided a comprehensive statutory interpretation of the term “inventor”. It began its interpretation by assessing the grammatical and ordinary sense of the term through references to well-known dictionaries and noted that “inventor” is generally understood as connoting a person rather than an AI system.
Dr. Thaler asserted that limiting the application of the word “inventor” to natural persons is too restrictive, as the meaning of words can evolve over time. To support this argument, he presented the examples of “calculator” and “computer”, which once referred to humans but later came to refer more typically to machines.
The PAB declined to accept Dr. Thaler’s submission, noting that although terms like “calculator” or “computer” may refer to both humans and machines, there is no evidence that the term “inventor” shares the same scope.
The PAB then moved to the context surrounding the term and found that, while it is defined neither in the Patent Act, nor in the Patent Rules, other provisions of these legislative texts could serve as indication of the meaning of “inventor”. One of the examples raised by the PAB is that “patentee”, as the term is defined at section 2 of the Patent Act, implies that inventors must also be a person or persons given that, in the event an inventor does not assign its rights to another party and a patent is granted, they would become the patentee. This is also why the identification of the inventor is so crucial.
Next, the PAB addressed the object and scheme of the Patent Act and parliamentary intention and, while it agreed with Dr. Thaler that the courts have made it clear that the patent system is to be applied in a way that encourages and recognizes advances in science and technology, it found that the patent system has limits on what may fall within its purview.
For example, a mouse, even if produced by an innovative process, cannot be protected by a patent as it does not fall within the scope of “manufacture” or “composition of matter” and a method of medical treatment, however innovative, also cannot be the subject-matter of a patent as it does not fall within the scope of “art” or “process”. In a similar manner, the PAB’s view is that the court’s above-noted guidance related to openness to innovation does not justify the significant shift in the meaning of “inventor” that would be required to bring an AI system within the scope of that term.
As for precedents found in Canadian case law relating specifically to the meaning of “inventor”, the PAB found that Canadian courts have not indicated any intention to interpret “inventor” as used in the Patent Act and Patent Rules to include a non-natural person or an entity such as DABUS and have instead interpreted the term to be limited to a natural person or persons.
Finally, the PAB considered arguments submitted by Dr. Thaler with respect to ownership, entitlement and policy, but found none to be sufficiently convincing to support the assertions that AI systems should be able to hold inventorship.
Ultimately, it concluded that the 161 Application did not satisfy subsection 27(2) of the Patent Act and section 54 of the Patent Rules, which require a patent application to be filed by an inventor or the legal representative of an inventor, that the inventor be identified and that the applicant file a statement of entitlement.
Dr. Thaler retains the right to appeal the PAB decision to the Federal Court, and, based on precedents in other jurisdictions, may elect to pursue this matter further.
Takeaway
Even though “inventor” is defined neither in the Patent Act nor in the Patent Rules, the PAB emphasized that legal inventorship must be human, regardless of how autonomous or creative the AI system may be.
As to whether a human being can be credited with the required “inventive concept” to be listed as an inventor when an AI system generates an invention without human input, the PAB remained silent on this aspect and, as such, the jury is still out, as the saying goes.
This decision is a significant precedent in Canadian intellectual property law and reinforces the current global consensus that AI cannot hold inventorship status – at least under existing legal frameworks.
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