patentology

Patent Filing Trends in 2025 Show Impact of AI and Continued Decline in Listed Firm Share

2026-02-09T17:18:00.001+11:00

The Australian and New Zealand patent filing landscape in 2025 was marked by the continuation of established market trends alongside a striking new development that has potentially significant implications for both the patent system and the patent attorney profession. Total standard patent applications filed in Australia decreased marginally by 0.4% to 30,327, representing the third consecutive year of modest decline following a pandemic-era peak. New Zealand complete applications fell more substantially, by 4.4% to 5,538. However, these figures were eclipsed by a dramatic surge in provisional patent filings driven by what appears to be widespread use of generative AI tools by self-represented applicants, a phenomenon that resulted in a near-tripling of self-filed provisional applications.

Market share dynamics continued to evolve in ways that present ongoing challenges for firms within the IPH Limited group. Independent firms collectively surpassed the 50% filing share threshold for the first time, accounting for 51.7% of Australian patent filings, while IPH's share declined further to 32.7%, down from 35.0% in 2024. Meanwhile, QANTM IP firms maintained relatively stable positioning at 15.6% filing share under private equity ownership. This continuing divergence reinforces the conclusion that ownership structure alone cannot explain firm performance, with factors including geographic market exposure, client demographics, and strategic positioning all playing significant roles.

Analysis of the 2025 data reveals a market navigating multiple concurrent trends: declining US-originating applications (down 5.1%), growing Chinese filings (up 13.5%), and the emergence of AI as both a potential disruptor and, paradoxically, a possible source of future work for patent attorneys.

Let’s dive in and look at the data.

High Court Backs Aristocrat on Software Patentability – It’s Time for IP Australia to Follow Suit

2026-02-07T17:42:00.002+11:00

The High Court of Australia has denied an application by the Commissioner of Patents for special leave to appeal a decision of the Full Federal Court in which claims to a computer-implemented invention (CII), in the form of an electronic gaming machine (EGM), were found to be patent-eligible in Australia. This brings to an end the long-running dispute over patentability of Aristocrat’s claims, and marks the first time since 1991 (IBM v Commissioner of Patents [1991] FCA 625) that any such dispute with the Commissioner over claims to a CII has concluded with a victory to the applicant/patentee.

The significance of this outcome cannot be overstated. In recent years we have seen many cases conclude with claims being found ineligible – i.e. not for a ‘manner of manufacture’ under Australian law – namely Grant v Commissioner of Patents [2006] FCAFC 120, Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150, Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, Watson v Commissioner of Patents [2019] FCA 1015 (leave to appeal refused in Watson v Commissioner of Patents [2020] FCAFC 86), Repipe v Commissioner of Patents [2019] FCA 1956, and Commissioner of Patents v Rokt Pte Ltd [2020] FCAFC 86. That is a lot of cases telling us what is not patent-eligible, with absolutely no guidance from the courts on where the boundary might lie on the positive side of patent-eligibility. Finally, we have a decision of the Full Federal Court that sets out a reasonably clear and concise test which is then applied to eligible claims. The High Court, in denying the Commissioner’s application for special leave to appeal, stated that the ‘Full Court applied established principles concerning the assessment of manner of manufacture and reached a unanimous and clear conclusion as to characterisation’: Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2026] HCADisp 15, at [2].

Following a rather convoluted passage through the Federal Court, the Full Federal Court and the High Court, back to the primary judge and then to the (differently constituted) Full Court, the final word on patent-eligibility of Aristocrat’s claims is Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131. In this decision, the Full Court effectively overruled the reasons (though not the orders) of the earlier Full Court, and adopted the affirmative reasons of three High Court judges in the split decision Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 (see High Court’s Failure Exposes the Festering Eligibility Sore in Australia’s Patent Laws for more). Somewhat unusually, this also involved, in a sense, ‘overruling’ the negative reasons of the other High Court judges, in a rare instance of three judges of an inferior court asserting precedence over three judges of a superior court (albeit with the support of three further judges of that superior court). But that’s just a function of how weird this case became!

In what follows, I will briefly summarise how we got here, where the law stands in view of the Full Court’s 2025 decision, and the High Court’s reasons for refusing special leave to appeal. Finally, I will review the current examination practice of the Australian Patent Office, and the prospects of change in the wake of the High Court’s decision.

Are Patent Offices Being Inundated with Low-Quality AI-Generated ‘Slopplications’?

2025-12-03T18:53:00.001+11:00

‘AI slop’, defined as ‘low-quality content created by generative AI, often containing errors, and not requested by the user’, was named Word of the Year for 2025 by the Macquarie Dictionary. Replace ‘content’ with ‘applications’, and ‘user’ with ‘patent office’ – let’s call them ‘AI slopplications’ – and we would have a good definition of a phenomenon that I suspect is occurring at offices around the world. In the first 10 months of 2025 (i.e. up until the end of October) the number of provisional applications filed at IP Australia by self-represented applicants was up by a whopping 174% over the previous five years’ average! The overwhelming majority of self-filed applications (98.6%) originate in Australia (i.e. have at least one Australian-resident applicant).

The number of self-filed standard patent applications has also increased, being 82% higher in the first 10 months of 2025 compared with the previous five years’ average. However, the number of standard patent filings by self-represented applicants remains a small proportion of the total – just 2.6% of all applications filed up until the end of October – and so the significance and impact of this increase remains to be seen.

The only plausible explanation I can think of for this sudden jump in filings by self-represented applicants after years of relative stability in numbers is the increasingly widespread and affordable availability of generative AI. What is not yet apparent is how applicants are using AI. Are they using ChatGPT and similar tools to assist in drafting patent specifications describing inventions made wholly by human inventors? Or are they also using AI to facilitate invention itself?

Either way, I fear that this will not end well for many of these self-filers. To be clear, there is absolutely no question that AI tools based on large language models (LLMs) can be used to assist in drafting patent specifications. In the hands of an experienced patent professional who understands the invention to be protected, the full legal requirements for protection, and the various national and international drafting principles, even a general-purpose tool such as OpenAI’s ChatGPT, Anthropic’s Claude, or Google’s Gemini can accelerate the process of preparing a quality patent specification. But there are also many potential pitfalls to using these tools, and they do not embody the significant expertise, skill and experience of a competent patent professional. And if the AI is also contributing to the invention, then there may be nothing that is legally protectable at all!

The good news for Australian patent attorneys is that the increase in DIY (with AI) provisional applications has not been accompanied by a corresponding decrease in applicants engaging professional assistance. The number of provisional applications filed via registered attorneys and firms for the first 10 months of 2025 is down by just 3.2% on the past five years’ average. And while this does reflect an ongoing decline over recent years, it indicates that the use of AI may be bringing new users to the patent system, rather than taking work from professional advisors.

How Attorney Firms are Benefiting from an Australian Patent Examination Backlog

2025-10-15T18:00:00.001+11:00

The Australian patent attorney profession has been undergoing a significant structural shift over the past decade. The listing of IPH Ltd in November 2014, and its subsequent series of acquisitions and mergers has created a dominant force controlling multiple major firms, while QANTM IP (QIP) -- which was originally publicly listed , but now owned by private equity – has become established as a second consolidated group. These ownership changes were expected to generate economies of scale and competitive advantages, yet the data tells a more complex story. Independent firms – those remaining outside the IPH and QIP consolidated groups – have been steadily gaining share. The latest data, presented here, indicates that independent firms have collectively lifted their new application filings from under 9,500 in FY2016 to nearly 15,000 in FY2025, while IPH's filings declined from over 14,000 to under 10,000 over the same period.

Conventional wisdom would suggest that such a dramatic shift in filing volumes should translate into corresponding changes in prosecution revenues within a few years, given the typical 3-5 year lifecycle from filing through examination to acceptance. However, publicly available financial information, particularly for the listed IPH group, has not shown the revenue declines one might expect from a 30% reduction in new filings. This apparent paradox raises questions about what is actually happening within the Australian patent prosecution system, and whether current revenue patterns are sustainable or merely a temporary phenomenon masking an inevitable adjustment.

By analysing detailed prosecution event data from IP Australia covering FY2013-25, including filing volumes, examination requests, examination reports, and acceptances across different firm groups, this article reveals a remarkable story. The data shows how factors largely outside the control of attorney firms – particularly IP Australia's examination capacity, backlog management, and recent productivity changes – have temporarily insulated the consolidated groups from the full commercial impact of their declining market share. The findings have significant implications for understanding current industry dynamics and, more critically, for assessing the medium-term prospects of different participants in the Australian patent attorney market.

Can You Turn an AI Chatbot into a Patent Drawing Professional?

2025-08-29T16:13:00.027+10:00

Unsurprisingly, many of my conversations with fellow patent attorneys over the past couple of years have centred on AI – my work with it, and what it means for patent practice. My own experience, and that of people I have spoken to, is that full patent drafting is not (yet) a practical application of AI, so patent attorneys are not yet out of a job! But I believe that there are, increasingly, parts of this task with which AI can provide effective assistance and productivity enhancements. And while much discussion around AI and intellectual property is directed to high-level policy questions or speculative future scenarios, I'm also interested in what we can do right now.

This week, I decided to experiment with using AI for a task that regularly eats up my time in patent drafting: creating professional flowcharts for computer-implemented inventions. There are, of course, commercial tools emerging for the automated generation of patent drawings, mostly as part of more comprehensive AI drafting assistance systems. My specific goal, however, was to see if I could develop a reliable system, using a general-purpose AI chatbot for which I already have a paid subscription (my chatbot-of-choice is Anthropic’s Claude), to go from a plain English algorithm description to a publication-ready, annotated flowchart suitable for a patent specification. And it turns out (spoiler alert) that the answer is yes.

What you will see below is a demonstration of the conversion of an algorithm – Euclid's method for finding the greatest common divisor (GCD) – described in everyday language into a professionally annotated flowchart in under five minutes.

I generally use PowerPoint for this kind of work – it is included with my Office 365 subscription, and thus incurs zero marginal cost. Some people use professional drawing applications, such as Visio, which provide more tools that can be used to speed up the process. And there are also specialised flowcharting applications available, although these can still be tedious to use for complex algorithms and – more importantly – they don't address the need for professional annotation with reference numerals and leader lines that patent specifications require.

Former Patent Examiner Takes IP Australia to Federal Court Over Alleged ‘Abusive Management Practices’

2025-06-10T18:16:00.001+10:00

A former IP Australia patent examiner who alleges ‘unlawful, unreasonable, unfair, inefficient, and abusive management practices’ at the government agency is seeking Federal Court review of Fair Work Commission (FWC) decisions that rejected his unfair dismissal claim.

Hendrik Johannes Liebenberg, who worked as a Patent Examiner from October 2012 until May 2024, has applied to the Federal Court of Australia for writs of certiorari and mandamus following unsuccessful FWC proceedings. His case centres on allegations that routine quality assurance procedures at IP Australia constituted improper interference with his decision-making authority. He has, additionally, escalated these claims into broader accusations about institutional practices.

For readers unfamiliar with the legal terminology, a writ of certiorari commands an inferior court or tribunal to set aside a decision, and is typically used when the decision-maker has exceeded their jurisdiction or made a jurisdictional error. A writ of mandamus compels a public official or body to perform a duty they are legally required to perform, or to exercise their jurisdiction according to law. Both are supervisory remedies allowing superior courts to oversee the exercise of power by decision-makers.

While it is more usual for the Federal Court to review administrative decision under the Administrative Decisions (Judicial Review) Act 1977, the difficulty for Mr Liebenberg is this case is that paragraph (a) of Schedule 1 to the ADJR Act excludes decisions made under employment-related legislation – including the Fair Work Act – from review. This exclusion reflects Parliament's intention that Fair Work matters should be resolved within the specialist tribunal system rather than through general administrative law review. To succeed, therefore, Mr Liebenberg will need to show that the FWC fundamentally misunderstood its jurisdiction, not just that it made errors within its jurisdiction.

The case provides a window into workplace dynamics at Australia’s primary intellectual property agency, though the FWC found no merit in the constructive dismissal claim after examining the circumstances of Mr Liebenberg's resignation.

NZ Patent Law Amendments Target Extinction of 82 ‘Dinosaur’ Applications

2025-03-25T16:44:00.000+11:00

At the time of writing, there are 26,111 patent applications pending and not yet accepted (i.e. awaiting examination, or under examination) at the Intellectual Property Office of New Zealand (IPONZ). Of these, 26,029 are subject to the provisions of the current law, the New Zealand Patents Act 2013, which came into effect on 13 September 2014. The remaining 82 applications are what we might regard as ‘dinosaurs’ – they ultimately claim an effective filing date prior to 13 September 2014, and remain subject to the former provisions of the Patents Act 1953.

The New Zealand government is now looking to accelerate the extinction of these dinosaurs. It has published draft legislation that will amend the transitional provisions of the 2013 Act such that any further divisional applications, filed more than three months after commencement of the amendments, will effectively be subject to many of the elevated standards of the current act, rather than the lower standards that applied under the old act. The idea seems to be that such applications would either be invalid (if they fail to meet the higher standards required under the current law) or could be granted as patents only to the extent that they substantially satisfy the same requirements that would apply had the originating application been filed on or after 13 September 2014.

On 18 March 2025 the New Zealand government published a notice seeking feedback on the draft legislation. Any submissions are due no later than 5pm (New Zealand time, which is earlier in the day almost everywhere else in the world) on 1 April 2025. That does not allow much time to review and respond to the draft! It should, however, be noted that the scope of the consultation is very narrow. The government is not interested in hearing from anyone who disagrees with the policy or legislative intent (which was supposedly addressed in an earlier consultation) – the sole subject of feedback being sought is ‘whether the drafting of the Bill achieves the policy intent or could have unintended consequences.’

When I saw the notice, I was curious about the extent of the impact this proposed legislation would have on applicants and the New Zealand patent system generally. I wondered how may applications would be implicated after all these years, and whether there are particular applicants that have been ‘exploiting’ the transition provisions more than others (spoiler alert: it turns out that there are). So that is what this article is mostly about.

DeepSeek's Pro-China Bias is Superficial: Revealing the Power of Local AI Deployment

2025-02-26T18:39:00.000+11:00

Today, something a little different for this blog. As many readers are aware, for the past couple of years I have been working towards a PhD in which, very broadly speaking, I have been looking at applying machine learning, AI and language models to the analysis of patent claims (in particular, to assessing the scope of claims). Most recently, I have been exploring how it might be possible to apply large language models – the types of AI behind popular chat services such as Open AI’s ChatGPT, Google’s Gemini, Anthropic’s Claude (my personal chatbot of choice), Meta’s LLaMa and (yes) Chinese newcomer DeepSeek – to this task. To experiment with ‘open source’ (or, more accurately, ‘open weights’) versions of some of these models, I have built my own combination of hardware and software. The process has been very interesting!

The emergence of powerful open-source large language models (LLMs) has democratised access to cutting-edge AI technology, but concerns about potential biases and restrictions embedded within these models persist. I've been experimenting with DeepSeek-R1-Distill-Qwen-14B, a distilled (smaller) version of the larger DeepSeek-R1 model developed by Chinese AI company DeepSeek. And what I've discovered is that the widely reported pro-China bias in this model appears to be remarkably superficial and easily circumvented through local deployment and simple prompt engineering techniques.

This has significant implications for organisations concerned about potential surveillance or ideological constraints when utilising Chinese-developed AI models. By running these models locally with appropriate system prompts, it's possible to unlock their full capabilities while maintaining complete control over input and output – effectively neutralising superficial safeguards, while keeping confidential information and intellectual property safe (so, yes, there is an IP element to this article).

To find out a bit more about what I did, and what I found, please read on.

Patent Applicants 2024– China Outfiles Australian Residents While LG Maintains Individual Lead

2025-02-05T16:40:00.001+11:00

My latest analysis of patent filing data for 2024 confirms a shift that has been years in the making – Chinese applicants have finally overtaken Australian residents to become the second largest source of patent applications, behind only the United States. This milestone comes as US filings showed a notable decline of 5.7%, while Chinese applications continued their steady growth with a 7.2% increase over the previous year.

Among individual applicants, LG Electronics maintained its position at the top of the table with 229 filings, extending its lead over second-placed Huawei. The healthcare and medical sector showed particular strength, with companies like Regeneron Pharmaceuticals making substantial gains in the rankings. Meanwhile, the technology sector saw some significant changes, including the departure of IBM from the top 30 applicants after a brief period of increased activity.

Analysis of the data by industry sector reveals some clear trends, with healthcare and medical applications showing strong growth while technology sector filings declined overall. However, these broad patterns mask considerable variation at the individual company level, suggesting that strategic considerations, rather than general market conditions, may be driving filing decisions for many of the leading applicants.

So let’s take a look at the numbers in more detail.

Patent Filing Trends 2024– Market Share Shifts Continue as Firms Face Ongoing Challenges

2025-01-30T17:45:00.003+11:00

The landscape of patent filing activity across Australia and New Zealand underwent continued transformation in 2024, marked by declining total filings and ongoing shifts in market share distribution and firm performance. Total standard patent applications filed in Australia decreased by 3.4% to 30,442, while New Zealand experienced a more pronounced decline of 7.3% to 6,202 applications. These trends are set against a backdrop of substantial structural change in the industry, most notably the acquisition of QANTM IP Limited by private equity management company Adamantem Capital in August, leaving IPH Limited as the last publicly listed ownership group standing.

As was the case last year, analysis of filing patterns reveals trends that create challenges for patent attorney firms regardless of their ownership structures. While direct filings in Australia increased by 7.5% to 9,238, this was more than offset by PCT national phase entries declining by 7.5% to 21,202, suggesting shifting preferences in filing strategies. Provisional applications showed modest growth of 2.2% to 4,335, marking a second consecutive year of recovery from post-pandemic lows, though still significantly below pre-2019 levels.

A market share analysis presents particularly interesting insights into evolving industry dynamics. Independent firms collectively increased their share of Australian patent filings to 49.6%, continuing a trajectory of share growth that has seen smaller practices double their collective presence since 2014. This shift occurred as IPH group firms experienced further decline in collective share to 35.0%, while QANTM IP, under its new private equity ownership, maintained relatively stable positioning at 15.4%. These changes reflect broader industry trends toward smaller, specialised practices, though the notable declines experienced by larger firms across both independent and group categories suggest that size, as much as ownership structure, continues to be anb influence on client choice.

Seeking Patent Professionals to Help Train AI Models to Assess Claim Scope

2024-12-19T07:30:00.001+11:00

Those of you who have been following my journey over the past couple of years will be aware that I am currently conducting PhD research at Melbourne Law School, investigating patent claim scope and its relationship to patent system performance. I have now reached a critical stage in the project where I need help from people with hands-on experience reading, analysing, and working with patent claims.

I am particularly seeking input from patent attorneys, examiners, lawyers, and other professionals who regularly engage with patent claims in mechanical, electrical, electronic and related fields. Whether you are formally qualified and registered, or have developed relevant expertise through other roles (such as patent examination or in-house IP management), your experience in evaluating patent claims would be invaluable to my research. While experience with claims drafted according to common US practice would be especially useful – since my source data is drawn primarily from US patents – expertise in any major English-language jurisdiction would be welcome.

The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months. No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar. You might even find it to be fun!

If interested, please read the remainder of this article, which comprises the call for participation in the research project, as approved by the University of Melbourne Human Ethics Committee. It also includes links to the web site where you can read more about the project and register to participate.

New IP Scam Alert: Fraudsters Now Impersonating Registered Attorneys

2024-12-10T11:10:00.001+11:00

In a concerning development, the authority that regulates the Australian and New Zealand IP professions, the Trans-Tasman IP Attorneys Board (TTIPAB), has warned attorneys about an ongoing scam involving the impersonation of registered IP attorneys to defraud IP rights owners. Specifically, the TTIPAB has warned that ‘IP Australia became aware of a scam that is currently circulating, where applicants are pressured into filing a trade mark via emails fraudulently purporting to be from a well-known registered attorney.’ Of course, this type of scam could easily target any type of IP right. The threat is particularly worrying because it undermines one of the traditional safeguards against IP-related scams – checking whether correspondence comes from a registered attorney.

While I have not seen the emails in question, it appears that what makes this new scam especially disturbing is that the fraudsters are not simply creating fictitious firms, attorneys, or official-sounding registration authorities, but are actually impersonating a real registered attorney. Since the Register of Patent and Trade Marks Attorneys is publicly accessible, scammers can easily obtain legitimate attorney details to make their communications appear more credible.

Is It Time to Talk (Again) About Reforming Australia’s ‘Best Method’ Requirement?

2024-11-29T17:34:00.002+11:00

The recent Full Federal Court decision in Zoetis Services LLC v Boehringer Ingelheim Animal Health USA Inc [2024] FCAFC 145 has highlighted fundamental flaws in the Australian patent law’s ‘best method’ requirement. While the court's application of existing principles appears sound, the resulting analysis reveals that the requirement is not only arbitrary in its operation, but potentially counterproductive to innovation.

The Australian Patents Act 1990 sets out requirements for patent specifications in section 40. These include that the specification must: disclose the invention in a manner clear enough and complete enough for the invention to be performed by a person skilled in the relevant art (the enablement requirement); disclose the best method known to the applicant of performing the invention (the best method requirement); and that the claims must be supported by matter disclosed in the specification (the support requirement). While failure to satisfy enablement or support might affect only certain claims, failure to disclose the best method is fatal to the entire patent. It is, in effect, a ‘nuclear’ ground of invalidity that cannot be remedied by amendment or partial revocation.

The Zoetis case concerned three patent applications for pig vaccines that were found invalid for failing to disclose the best method of performing the inventions. While the applications disclosed ranges of antigen concentrations that would work, they did not reveal the specific concentrations used in Zoetis's successful experimental vaccines. The court’s analysis of why this was fatal to the applications exposes deep problems with the requirement itself.

Hindsight by Stealth? Pre-RtB ‘Ascertainment’ After Sandoz v Bayer

2024-11-28T15:42:00.005+11:00

A recent Full Court decision suggests that demonstrating prior art could be ‘reasonably expected to be ascertained’ under the pre-Raising the Bar (RtB) law may be considerably easier than previously thought. But has the pendulum swung too far? In relaxing the evidentiary requirements for establishing that prior art information would have been found by the skilled person, the Full Court may have undermined a safeguard against hindsight analysis that was inherent in the prior law.

In Sandoz AG v Bayer Intellectual Property GmbH [2024] FCAFC 135, the Full Court has taken a markedly different approach to prior art ‘ascertainment’ than the primary judge (Rofe J in Sandoz AG v Bayer Intellectual Property GmbH [2023] FCA 1321). While acknowledging that whether prior art ‘could be reasonably expected to have been ascertained’ is a question of fact, the Court has effectively lowered the bar for the evidence required to establish this factual foundation. This raises a question of whether the practical difference between the old and new law is as great as previously assumed.

The primary judge took what might be called a ‘real world’ approach to ascertainment. Her Honour wanted to see evidence of the complete search process that would have been undertaken by the skilled person, without knowledge of the target document. This included evidence of searches across multiple databases using various relevant search terms, and – critically – how the skilled person would have identified the relevant document from among all the search results that would have been generated.

The Full Court rejected this approach as too demanding. Instead, the Court held that once it is established that a document would have been found in a relevant database search, it is not to the point that additional searches might have been performed or that other documents might also have been found.

This might seem like a practical approach – after all, if a document exists in a database that would have been searched, using search terms that would have been used, isn't that enough to show it could have been found? But this reasoning potentially introduces precisely the kind of hindsight analysis that the ‘ascertainment’ requirement was – arguably – meant to guard against.

Full Court Delivers Hot N Cold Comfort in Katy Perry Trade Mark Battle

2024-11-27T17:56:00.001+11:00

While this blog normally focuses on patent matters, occasionally a case comes along that warrants stepping outside my usual lane. The Full Court of the Federal Court’s decision in Killer Queen LLC v Taylor [2024] FCAFC 149, delivered last week, is one such case. After all, it’s not every day that an Australian small business owner finds herself locked in a trade mark dispute with an international pop superstar over their shared name.

The case is a sobering reminder that sometimes you can wake up to find that your own name has effectively been monopolised by someone more famous – even if you got there first. It's enough to make you want to Roar in frustration!

Here We Go Again? Aristocrat Eyes High Court After Grant of Leave to Appeal

2024-09-02T17:20:00.002+10:00

A single judge of the Federal Court of Australia, Justice O’Bryan, has granted Aristocrat Technologies Australia Pty Ltd (‘Aristocrat’) leave to appeal a decision issued back in March this year. In that decision, Justice Burley found that all remaining claims in a group of innovation patents relating to computer-implemented electronic gaming machine (EGM) technology did not define patent-eligible subject matter. The grant of leave opens up an opportunity for Aristocrat to ask the High Court of Australia to untangle the mess that it created back in 2022 when a six-judge panel split 3:3 on whether or not to allow an earlier appeal against a decision of the Full Federal Court relating to the primary claims of the same innovation patents.

The case has a complicated history. For anybody who may just be joining us, or who requires a recap, here is the story so far in a nutshell.

Way back in 2018, a Delegate of the Commissioner of Patents revoked four innovation patents relating to the implementation of a ‘feature game’ in an EGM (i.e. a secondary, or bonus, game triggered by the occurrence of a defined event in the ‘base’ game of spinning reels) on the basis that the patents did not claim a patent-eligible ‘manner of manufacture’ under Australian law: Aristocrat Technologies Australia Pty Limited [2018] APO 45.
Aristocrat appealed to the Federal Court where, at first instance, Justice Burley determined that the claims were, in fact, directed to ‘a mechanism of a particular construction, the operation of which involves a combination of physical parts and software to produce a particular outcome in the form of an EGM that functions in a particular way’, and that this was patentable subject matter in Australia: Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2020] FCA 778. (For more, see Federal Court Finds Computer-Implemented Gaming Machine Patent-Eligible in Australia.) Importantly, this decision was based on consideration of a single claim that the parties agreed was representative of the primary claims in all four innovation patents. The dependent claims of the patents were not considered at all in the judgement.
The Commissioner of Patents was granted leave to appeal to the Full Federal Court, where all three judges on the panel agreed that the decision of Justice Burley should be overturned, and the matter remitted back for consideration of any residual issues relating to the dependent claims. However, a plurality of two judges (Middleton and Perram JJ) based their decision on a new two step test – first asking whether the claims are for a ‘computer-implemented invention’ and then whether that invention can ‘broadly be described as an advance in computer technology’ – while the third judge (Nicholas J) instead took a more conventional path, observing that the substance of the claimed invention lay in the mere computer implementation of an unpatentable ‘scheme or set of rules for the playing of a game’: Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202. (For more, see Patent-Eligibility of Computer-Implemented Inventions – Appeals Court Says an ‘Advance in Computer Technology’ is Required.)
The High Court granted Aristocrat special leave to appeal. Unfortunately, on the days of the hearing one judge was absent due to illness and – for whatever reason – the Court decided to proceed with a panel of six judges (which, astute observers will note, is an even number). The panel split 3:3, meaning that, under section 23(2)(a) of the Judiciary Act 1903, ‘the decision appealed from shall be affirmed’. This left the judgment of the Full Federal Court intact, notwithstanding that three judges of the High Court (Gordon, Edelman and Steward JJ) would have reversed it, and the remaining three (Kiefel CJ, Gageler and Keane JJ) would have upheld it on different grounds. All six judges of the High Court explicitly or implicitly disapproved the novel two step test of patentability proposed by the plurality in the Full Federal Court: Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29. (For more, see High Court’s Failure Exposes the Festering Eligibility Sore in Australia’s Patent Laws.)
In accordance with the orders of the Full Court, the case was remitted back to Justice Burley for consideration of the ‘residual issues’. In the resulting judgment, his honour determined that the effect of section 23(2)(a) of the Judiciary Act is plainly that the Full Court decision is ‘affirmed’, that he was bound, as a single judge of the court, by that decision, and that he should not therefore have any regard to the reasoning of the High Court in reaching his decision. As a result, Burley J found all of the remaining claims to be unpatentable under the plurality’s two step test: Aristocrat Technologies Australia Pty Limited v Commissioner of Patents (No 3) [2024] FCA 212.

Aristocrat sought leave to appeal this further decision of Burley J. Section 25(2) of the Federal Court of Australia Act 1976 stipulates that applications for leave to appeal must be heard and determined by a single judge unless a judge directs that the application be heard and determined by a Full Court – which happens quite often in cases such as this, including in Aristocrat’s appeal from Justice Burley’s original decision. On this occasion, however, Aristocrat expressly sought that the application for leave be determined by a single judge, separately and before the hearing of any appeal. This preserves its option to have the appeal removed directly to the High Court under s 40(2) of the Judiciary Act.

With leave having now been granted by O’Bryan J in Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2024] FCA 987, it seems reasonable to assume that Aristocrat will now apply to have the High Court take up the case directly. But for those who may be hoping that this is a short-cut to having the Court resolve the impasse it reached in 2022, I regret that matters may not be quite so simple.

Have Australia’s ‘Raising the Bar’ Law Reforms Suppressed Patent Oppositions?

2024-05-03T11:13:00.004+10:00

Australia has a pre-grant patent opposition system. That is to say, once an application has passed examination and been accepted for potential grant as a patent, there is a period (of three months) during which anybody may oppose the grant. The subsequent opposition proceedings – if they run their full course – consist of a series of evidentiary stages, legal submissions, and an oral hearing, following which the hearing officer (a delegate of the Commissioner of Patents) issues a written decision on the outcome of the opposition. In the final reckoning, the patent application may emerge unscathed, it may be refused, or it may end up being granted subject to narrowing amendments.

The patent opposition system recognises that the examination process is imperfect. Examiners have limited time, resources and technical expertise. Therefore, they may not always find the closest and most relevant prior art, or spot every technical and legal issue that might be identified by a motivated competitor to the patent applicant, equipped with a team of technical and legal experts. Furthermore, opposed applications are presumably those that are of greatest concern to competitors, enabling the system to weed out invalid claims that have the greatest potential to unfairly stifle competition.

In the years prior to 2016, the number of oppositions filed each year was fairly consistently between 100 and 120. In recent years, however, it has commonly been between 40 and 60. In other words, there are now only about half the number of patent oppositions being filed than was the case just a decade ago. So, if oppositions play an important role in the Australian patent system – and the policy rationale for having them asserts that they do – is it possible that they are now less effective than they once were? And, if so, then why?

In this article, I will present data on all patent oppositions filed between 2008 and 2023. I will demonstrate that the decline in patent oppositions appears to be associated with the commencement of the Raising the Bar (‘RtB’) IP law reforms in 2013. Among other things, the RtB reforms introduced more stringent standards of patentability, particularly in relation to inventive step and the level of disclosure required to support broader patent claims. The reforms also changed the standard of proof to be applied during examination and opposition proceedings. I will show that in the post-RtB era, opposition proceedings have more frequently progressed through to a final decision, and that opponents have had somewhat greater success in completely eliminating opposed applications. However, the overwhelming majority of opposed applications still result in granted patent rights, and in nearly half of all cases the opponent has been wholly unsuccessful and the patent has been granted with the originally accepted claims.

While the data cannot directly reveal the reasons for the significant reduction in opposition filings, I tentatively argue that the change in the standard of proof applied in patent oppositions may have had the unintended consequence of suppressing patent oppositions, and reducing the effectiveness of the opposition system.

Large vs Small, Group Ownership vs Independent – What Factors Influenced Firms’ Patent Filing Share in 2023?

2024-03-05T17:35:00.001+11:00

As I recently reported, Australian patent filings in 2023 fell slightly, by 2.4%, over the previous year. This implies, of course, that patent attorneys filing applications on behalf of domestic and foreign clients should, overall, also have experienced a similar decline new filings. But, of course, individual firms fared differently in the competition for this work. Looking at new complete (i.e. non-provisional) patent filings across Australia and New Zealand, declines were experienced by all firms held within the two groups owned by Australian Securities Exchange listed entities IPH Limited (ASX:IPH) and QANTM IP Limited (ASX:QIP). IPH firms Spruson & Ferguson, Griffith Hack, AJ Park, and Pizzeys filings declined by 5.0%, 3.6%, 14.9% and 6.9% respectively, QANTM IP firms Davies Collison Cave and FPA Patent Attorneys filings declined by 13.2% and 8.8% respectively.

But it was not only the listed group firms that saw declines in excess of the 2.4% average. Of the leading ten firms, only Phillips Ormonde Fitzpatrick (+3.1%) and Madderns (+10.3%) achieved growth in filing numbers. While ownership structure is one possible factor influencing client choice, firm size (irrespective of ownership) appears also to be (negatively) correlated with filing growth. Additionally, the number of new patent filings fell significantly in New Zealand, which disproportionately impacted those trans-Tasman firms – most notably A J Park – with a higher exposure to the market for New Zealand patent services.

Overall, the share of Australian patent filings has continued to shift generally away from larger and/or listed group firms in favour of smaller independent firms. But even this trend is not simple to unpack. For many years now, IPH firms have shed filing share, while the QANTM IP firms have held fairly steady, although they experienced a notable decline in share in 2023. On the other hand, the top six independent firms that have been in continuous operation since IPH initially listed in 2014 have collectively gained 6.3% filing share over this period. However, bigger gains have been made by the numerous small (i.e. employing fewer than 10 patent attorneys), independent, practices that account for just over half of the trans-Tasman patent attorneys working in private practice. There are over 150 such practices, including the two rapidly-growing recent entrants RnB IP and GLMR, which have collectively gained 11.8% filing share since 2014, and now account for nearly 23% of all Australian complete patent filings.

Let’s look at the numbers in more detail.

LG Again Tops Australian Patent Filings in 2023, as Most of the ‘Usual Suspects’ Return

2024-02-28T15:48:00.001+11:00

Over the past five years (i.e. since 2019) Korea’s LG Electronics Inc and China’s Huawei Technologies Ltd have consistently placed in the top five applicants for Australian patents. Indeed, for the past four years they were in the leading three. In 2021, Huawei came out on top with LG a close second. In 2022, LG took top place, with IBM appearing from nowhere to push Huawei back into third. And in 2023, LG has once again grabbed the top spot, with Huawei not too far behind, and IBM easing up on its Australian filing frenzy to slip back into equal 14^th position with a ‘mere’ 100 applications.

Notwithstanding Asian companies holding the top two positions, US applicants dominated to top 30 filers, taking up 20 spots including six of the top 10. This is no great surprise. As the numbers in my previous article show, US residents filed 44% of all Australian patent applications in 2023, despite a 6% decline in US-originating filings. While some applicants moved up or down the rankings, the overall make-up of the top 30 was similar to the previous year, with only eight exits/entries among the lower positions. Furthermore, a number of the applicants entering the table are not unfamiliar names, having appeared previously before dropping out temporarily.

Once again, the leading Australian-based applicant was Aristocrat Technologies Australia Pty Ltd with 73 applications, followed by the Commonwealth Scientific & Industrial Research Organisation (CSIRO) with 54 applications – both slightly up on the previous year’s numbers. Yet again the top New Zealand applicant was Fisher & Paykel Healthcare Ltd which, with 107 applications, comfortably out-filed the leading Australians.

Read on for a look at the numbers in more detail.

Patent Filings in Australia Fell Again in 2023, but Applications from China are Bucking the Trend

2024-02-22T17:27:00.000+11:00

In 2023 the total number of standard patent applications filed in Australia remained above 30,000 for the third year running, despite a 2.4% drop in filings. This follows a decline of nearly 0.5% in the previous year. However, whereas the decline in new applications in 2022 was due to fewer filings by Australian residents (with a slight increase in foreign-originating applications preventing a larger fall), the drop in 2023 was the result of nearly 800 fewer filings by foreign applicants. As always, a majority of new filings were national phase entries (NPEs) derived from international applications under the Patent Cooperation Treaty (PCT). But, for the first time since 2016, the number of PCT NPEs fell – by 3.2% – offset somewhat by a 14% rise in new direct national filings. The number of divisional applications also fell in 2023, by 7.3%.

In some (very limited) good news for Australia, patent filings by domestic residents increased by 2.6%, while the number of provisional applications increased by 5%. Unfortunately, however, two thirds of the additional provisional applications in 2023 were filed without the professional assistance of a patent attorney. (I say ‘unfortunately’ because, as I have shown previously, the outcomes for self-represented applicants are generally abysmal, so for the most part they are wasting their time and what little money they are expending on fees to IP Australia.)

The top 10 countries of origin of applications filed in 2023 were the United States, Australia, China, Japan, the UK, Germany, Switzerland, South Korea, France and Canada. There were substantial drops in the numbers of applications filed by applicants from the US (-6.0%), South Korea (-10.5%) and Canada (-14%). The largest growths in filings were from China (12.1%) and Japan (5.2%). China is once again snapping at the heels of Australia from second position on the league table. This happened previously in 2020, when I (mistakenly) predicted that Chinese filings might surpass domestic filings as early as 2021. But while it is taking longer than appeared likely a few years ago, it seems inevitable that Australians will soon fall behind Chinese applicants as users of the Australian patent system.

Given that the innovation patent system is being phased out, it should come as no surprise that just 106 innovation patent applications were filed in 2023 (down from 191 in 2022), all of which were necessarily derived from existing applications filed prior to 26 August 2021. Around two-thirds of applicants still filing for innovation patents are Australian (120 in 2022 and 67 in 2023). Furthermore, a larger proportion of innovation patents are now being certified and made enforceable than has historically been the case, with 75 of those filed in 2022, and 31 of those filed in 2023, so far having been certified. But with innovation patents now being a small, and shrinking, part of the Australian patent system, I shall have nothing more to say about them in this article, and I will drop the distinguishing term ‘standard’ when talking about ‘regular’ patent applications.

The Major Australian Client at the Centre of David and Goliath Legal Battle Between Patent Attorney Firms

2024-01-07T11:57:00.000+11:00

As some readers may be aware (I have previously mentioned it only in passing) a firm in the IPH Limited (ASX:IPH) group – the market cap of which is A$1.56B at publication – is once again taking legal action against a recently-established firm and its founders, all of whom are former employees of Spruson & Ferguson (‘S&F’). Earlier, IPH group firm Pizzeys had sued RnB IP and its two founders – formerly partners in Pizzeys at the time of its acquisition by IPH – for alleged breach of non-compete, non-dealing, and/or non-solicitation restraints that were included in their employment contracts. That dispute ultimately settled out of court and was finalised prior to trial, in September 2022, so we did not get the benefit of judicial consideration of whether the contractual restraints were reasonable and/or enforceable.

The startup firm on this occasion is GLMR, founded by Edward Genocchio (‘G’), Michelle Lee (‘L’), David Müller-Wiesner (‘M’) and Simon Reynolds (‘R’). The firm was also, for a short period, known as LMW IP, which was established by ‘L’ and ‘M’ before they were joined by ‘G’ and ‘R’. The action taken thus far against GLMR and its founders by S&F is an application to the Federal Court of Australia for preliminary discovery (case no. NSD6/2023), in which the GLMR parties are identified as prospective respondents in a potential future action. This is the same strategy previously employed by Pizzeys against RnB IP. In the RnB case, the preliminary application was contested, and resulted in a published decision of Justice Jagot ordering discovery. In the present case, however, it appears that the parties have reached agreement on scope of discovery, with the corresponding orders made by a Registrar of the court (see orders made on 23 October 2023 [PDF, 135kB]). While preliminary discovery was initially due by 29 November 2023, this has been extended by further orders to 5.00pm on 16 February 2024.

The discovery orders provide some insight into the nature of S&F’s prospective case against GLMR. An impression of the impact that GLMR has had on S&F’s patent business can also be discerned from the public records of the Australian Patent Office. In this article, I take a look at these two aspects of the matter.

Disciplinary Decision Against Registered Attorney a Reminder of the Importance of Clear Communication and Record Keeping

2024-01-02T14:06:00.001+11:00

Back in July, the Trans-Tasman IP Attorneys Disciplinary Tribunal (‘the Tribunal’) issued a decision in relation to a complaint about a registered attorney (‘the attorney’) by a client (‘the client’) in response to which the Trans-Tasman IP Attorneys Board (TTIPAB, a.k.a. ‘the Board’) commenced disciplinary proceedings, bringing nine charges against the attorney. The full decision of the Tribunal can be found here [PDF, 364kB], while a separate ruling on the penalties to be applied can be found here [PDF, 223kB]. This decision is a ‘first’ in a couple of respects. It is the first time the Tribunal has sat as a three-member panel (rather than a single decision-maker). It is also the first time that charges have been brought against an attorney under the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018 (‘Code of Conduct’’). Reference to specific provisions of the Code of Conduct has resulted in charges having a clearer basis and greater precision than may have been the case in past disciplinary proceedings.

There are, in this decision, three important messages – or, one would hope, reminders – for registered trans-Tasman patent attorneys.

First, an attorney’s obligation to ‘disclose to a client all information of which the registered attorney is aware that is materially relevant to work being undertaken for the client’ (paragraph 17 of the Code of Conduct) extends to information about the state of the law. In this case, the attorney was obliged to inform the client about the difficulties inherent in obtaining patents for business methods (whether or not implemented using computer technology), and about the requirement to provide a sufficient disclosure of a claimed invention along with the potential adverse consequences of failing to do so. The attorney was found to have satisfied the first of these two obligations, but not the second.

Second, an attorney’s obligation to ‘have appropriate competency’ and to carry out work that they undertake ‘with due skill and care’ (paragraph 14 of the Code of Conduct) includes ‘adequately and properly advising’ a client of anticipated legal risks or difficulties that may be encountered in obtaining IP rights. Closely related to the first point above, in this case the attorney was obliged to properly advise the client of the significant risk that a patent application directed to a business method would be refused, and of the risks associated with failing to include a sufficient disclosure of a claimed invention in a patent application. Here, the attorney was found to have satisfied neither of these two obligations.

Third, an attorney’s obligation to ‘maintain standards of professional practice as a patent attorney … that are courteous, ethical and well-informed’ (sub-paragraph 13(2) of the Code of Conduct) encompasses appropriate record keeping. In this case, the attorney was obliged to keep adequate documentation of the advice that had been provided to the client, whether or not that advice was given in writing. The attorney was found to have failed in this respect with regard to advice provided in relation to two patent specifications prepared on behalf of the client.

I recommend that all registered and prospective trans-Tasman patent attorneys read the full decision. It is a credit to the profession that disciplinary proceedings are few and far between, but this makes the rare decisions that we do have all the more important. What follows is my own overview and comments.

IP Australia is Seeking Feedback on Proposed Fee Changes

2023-12-19T11:40:00.001+11:00

IP Australia has published a draft of its four-yearly Cost Recovery Implementation Statement (CRIS), which outlines proposed fee changes that would take effect from October 2024. It is also taking the opportunity to review the hearing costs that may be awarded for Patents, Trade Marks and Designs. Feedback on the proposals may be provided via submissions to IP Australia’s public consultation page. Consultation is open until Sunday, 21 January 2024.

In this article I will be looking in greater detail at some of the changes relating to patents in particular. Stakeholders with an interest in any of the rights administered by IP Australia (patents, trade marks, registered designs and plant breeder’s rights) should take the opportunity to review the draft CRIS and submit any comments or concerns during the consultation period. Briefly, on non-patent matters, I note that there are significant changes proposed to the fee structure associated with trade mark opposition hearings, with fees that increase with the number of grounds, beyond the first three, raised in a Statement of Grounds and Particulars (SGP), and with the number of prior trade marks, beyond the first ten, cited under section 44. For designs, it is proposed to reduce application fees, while the fees for requesting examination will be slightly increased. For Plant Breeder’s Rights, modest increases to application fees are proposed, however there will be more substantial increases in examination fees, and a doubling of renewal fees.

Registered trans-Tasman attorneys will want to take note that IP Australia is also proposing to increase registration renewal fees by A$50 across the board, which it says is required ‘to assist in covering the cost of administering the Trans-Tasman IP Attorney system.’

In the patents area, the headline changes, discussed in greater detail below, are: modest increases to most filing, examination and renewal fees; a doubling of opposition and hearing fees; a change in the timing (but not amount) of excess claim fees, from being charged at acceptance to (also) being charged at the time of requesting examination; a surprising (and perhaps unintentional) removal of innovation patent filing fees; and significant increases to the level of costs that can be awarded in contested proceedings, including patent oppositions.

Profile of the Creator of AI ‘Inventor’ DABUS Raises More Questions About International Test Cases

2023-08-17T16:43:00.001+10:00

A profile of DABUS creator Dr Stephen Thaler, written by Tomas Weber and published by The Economist in April 2023, paints a picture of a rather isolated man – a septuagenarian, the product of a traumatic childhood, slightly paranoid, seemingly obsessed with his creation, and whose supportive wife seems resigned to the reality that he spends more time with his machines than he does with her. To be clear, I have no way of knowing whether this is accurate. I can only go on what is written in the article. But assuming Weber’s account is a fair assessment, I would suggest that it raises additional questions about the ongoing global efforts – driven by Professor Ryan Abbott and his Artificial Inventor Project – challenging the legal barriers to AI inventorship and authorship.

The article, entitled The inventor who fell in love with his AI, is paywalled, so unfortunately you will need a subscription (or access to an institutional subscription) to read it. I will try to hit some of the main points here, by way of review and commentary, but obviously copyright prevents me from reproducing large portions of the article. The first point I would make, however, is that the title is somewhat misleading and sensationalist. While it is liable to invoke notions of romantic love – à la Spike Jonze’ 2013 film Her – Weber in fact reports, in the depths of the article, that Thaler ‘has developed what seems like a genuine paternal affection for the AI, and recalled cooing to it gently in the early stages of its development’. In Thaler’s words, “[i]t’s a child-and-father bond.”

More importantly, however, Weber’s profile of Thaler goes no way towards persuading me that DABUS is capable of true creativity or invention. The article reveals that the output of the machine allegedly representing the ‘fractal bottle’ invention described and claimed in the DABUS patent applications was “food drink in fractal bottle increase surface area making faster heat transfer for warming cooling convenience pleasure”. This is barely a coherent sentence, let alone an enabling disclosure of any kind of invention. At best, it may serve to inspire a line of thinking that could result in the reader developing some inventive idea. What is a ‘fractal bottle’? How should the ‘fractal’ be deployed to ‘increase surface area’? Would this invariably result in ‘faster heat transfer’, or are there other design considerations involved? How does this provide ‘convenience’? Or ‘pleasure’? So many questions, to which a patent attorney would need answers in order to prepare a patent specification. Who provides these answers? Is it the machine, or is it the machine’s human owner who was the first to observe and be inspired by the machine’s output? And, if the latter, then are they not the true inventor just as surely as someone who stumbled across inspiration by chance in the natural world?

There are, also, some more disturbing implications of Weber’s account. Thaler is presented as someone who had a difficult childhood, and whose life experiences may have led him into a less-than-healthy relationship with technology. Some of his beliefs about his machines, and their capabilities – and, indeed, about himself and his fellow humans – may, in Weber’s version of Thaler’s story, derive more from trauma and a search for meaning than from objective scientific evaluation. Weber describes a man who is perhaps in failing health, who has experienced disappointments and perceived injustices, and who has a bleak view of his fellow men and a vision of a possible coming AI apocalypse.

Yet this is the man who – with his creation, DABUS – has become the vehicle for the Artificial Inventor Project’s international campaign to achieve legal recognition for AI ‘inventors’. The result of this campaign was only ever going to be a further series of disappointments and resentments, as jurisdiction after jurisdiction rejects DABUS’ claims to inventorship. And for Thaler, each rejection is only further evidence of the world’s refusal to accept his claims of his machines’ profound creative capabilities.

Intellectual Property is Integral to AI Regulation, and Getting it Wrong Will Hand More Power to Big Tech

2023-06-12T18:21:00.001+10:00

Governments around the world are considering how they can – and should – regulate the development and deployment of increasingly powerful and disruptive artificial intelligence (AI) technologies. Australia is no exception. On 1 June 2023, the Australian government announced the release of two papers intended to help ‘ensure the growth of artificial intelligence technologies (AI) in Australia is safe and responsible’. The first of these is the Rapid Response Report: Generative AI, which was commissioned by Australia’s National Science and Technology Council at the request of the Minister for Industry and Science, Ed Husic, back in February. The Rapid Response Report assesses potential risks and opportunities in relation to AI, and is intended to provide a scientific basis for discussions about the way forward. The second paper is the Safe and Responsible AI in Australia Discussion Paper which, according to the Minister’s media release, ‘canvasses existing regulatory and governance responses in Australia and overseas, identifies potential gaps and proposes several options to strengthen the framework governing the safe and responsible use of AI.’

The discussion paper seeks feedback on how Australia can address the potential risks of AI. It provides an overview of existing domestic and international AI governance and regulation, and identifies potential gaps and additional mechanisms – including regulations, standards, tools, frameworks, principles and business practices – to support the development and adoption of AI. It focuses on ensuring AI is used safely and responsibly, but does not consider all issues related to AI, such as the implications of AI on the labour market and skills, national security, or military specific AI uses.

Another key area that is expressly excluded from this consultation is intellectual property. That is, in my view, a serious shortcoming. It appears to presume that IP is somehow separable from the other issues covered by the discussion paper. This is a flawed presumption, particularly in relation to business practices. In the contemporary world, IP is at the heart of many business practices, and the laws and regulations that we make around IP can be the difference between a business practice that is viable, and one that is untenable. And not every business practice that might be enabled by IP laws is necessarily desirable or of net benefit to society. If we fail to consider the interplay between IP laws, business practices, and other forms of regulation, then we risk making mistakes that might prove very difficult to undo in the future.

This article is prompted by, but is not primarily about, the Australian consultation process (although I will return to that at the end). It is about how IP rights, and other forms of regulation, could operate to concentrate increasing levels of power in the hands of the few big tech companies – such as Microsoft (through its partnership with OpenAI), Google and Amazon – that have risen in recent years as the dominant players in AI and its enabling technologies. Based on recent developments, I believe that the stage is already being set for implementation of exactly the kinds of laws and regulations that would most benefit these companies, under the guise of protecting innovators, content creators, and the general public against the various threats said to be presented by AI.

A perfect storm is brewing. Onerous regulation around the development, training and deployment of AI systems could combine with IP-based restraints on the use of training data, and on AI outputs, to bake-in an advantage for the world’s richest and best-resourced companies. The storm is being fuelled by hype and fearmongering which, even though much of it may be well-intentioned, plays to the interests of big tech.