- Blog
- April 25, 2026
Artificial intelligence is everywhere right now. It’s generating marketing copy, designing products, writing code, even helping researchers identify new drug candidates. If you’re running a business in Australia in 2026, there’s a reasonable chance AI is already touching some part of your operations – whether you’ve deliberately adopted it or it’s crept in through the tools your team uses.
Which raises some genuinely interesting questions for intellectual property. And we’re not talking about abstract, academic questions. We’re talking about practical, commercial ones that affect real Australian businesses right now.
At Ascot Martin, we’ve been fielding more and more AI-related IP enquiries over the past year or so. Founders wanting to know if they can patent an AI-powered process. Brand owners worried about AI-generated copycats. Businesses unsure who actually “owns” the output when AI is involved in the creative process.
Here’s where things currently stand.
Can You Patent an AI Invention in Australia?
This is probably the question we get asked most. And the answer is: quite possibly, yes – and more confidently than a couple of years ago.
In early 2026, the High Court of Australia effectively endorsed the Federal Court’s approach to computer-implemented inventions, settling a question that had been debated for over a decade. The upshot is that Australian patent law now takes a broader, more practical view: if your AI-related invention produces a useful, tangible result and isn’t simply an abstract idea running on a computer, it may well be patentable.
That’s a significant development. It means Australian businesses developing AI-powered tools, systems, and processes have a clearer pathway to patent protection than at almost any point in the recent past.
But – and this is important – the devil is in the drafting. A patent specification for an AI invention needs to be carefully prepared to demonstrate that the invention is more than just a scheme or method implemented on a computer. It needs to show a concrete, technical contribution. This is exactly the kind of nuanced work that patent attorneys specialise in, and it’s not something a generic template can handle.
If you’ve developed a novel AI system or an AI-driven process that gives your business a competitive edge, it’s worth having a conversation about whether patent protection makes sense. We’ve written previously about how to protect an invention in Australia, and the same principles apply here – with some AI-specific considerations layered on top.
Who Owns the IP When AI Is Involved?
This one gets philosophically interesting, but let’s keep it practical.
Under current Australian law, a “human author” or “inventor” is generally required for both copyright and patent protection. AI itself cannot be an inventor or author – the Federal Court confirmed this in the Thaler v Commissioner of Patents case (regarding the AI system called DABUS). The High Court declined to overturn that decision.
So if an AI system autonomously generates a piece of content, a design, or an invention with no meaningful human input, it’s on shaky ground for IP protection in Australia.
However, the reality is that most businesses aren’t using AI autonomously. They’re using AI as a tool, directed by human creativity, judgment, and decision-making. In those cases, the human who directed the AI and shaped the output is typically the relevant creator or inventor.
The practical takeaway? Document your process. If AI plays a role in your inventive or creative work, keep records showing the human input, direction, and decision-making involved. This can be important if you ever need to assert IP rights.
AI and Trade Marks: The Brand Protection Angle
AI doesn’t just create IP issues on the invention side. It’s also creating new challenges for brand owners.
We’re seeing a rise in AI-generated counterfeit products, AI-created deepfakes featuring brand logos, and AI-powered tools that make it faster and easier for bad actors to knock off established brands. If you’re a brand owner, the case for having your trade marks properly registered has arguably never been stronger.
A registered trade mark gives you a clear legal basis to take action – whether the infringement is carried out by a human or facilitated by AI. Without registration, you’re relying on the more complex and expensive route of common law passing off or misleading and deceptive conduct claims under the Australian Consumer Law.
If you’re expanding into e-commerce or digital marketplaces (where AI-generated counterfeits are most prevalent), having registered trade marks in all relevant jurisdictions is essential. We work with a global network of IP attorneys to help our clients protect their brands internationally – something we discuss in our blog on taking IP global.
The New Merger Control Regime and IP
Something that hasn’t received enough attention is Australia’s new mandatory merger control regime, which took effect on 1 January 2026. This requires businesses to notify the ACCC of certain transactions involving “assets” – and the definition of “assets” is broad enough to include all types of IP rights, including patents, trade marks, and licences.
Importantly, the ordinary-course-of-business exemption specifically does not apply to patents. So if your business is involved in acquiring, licensing, or transferring patent rights as part of a transaction, you may have notification obligations you didn’t have before.
This is a technical area, and we’d always recommend getting specific legal advice on how it affects your situation. But it’s worth flagging because it’s new, it’s relevant, and not everyone is aware of it yet.
What Should You Actually Do?
If AI is part of your business (and in 2026, it probably is), here are some practical steps:
- Audit your AI usage. Understand where AI is involved in creating products, content, processes, or designs. Map out the human involvement at each stage.
- Document human input. If you’re using AI as a tool in an inventive or creative process, keep records of the human direction, decisions, and expertise that shaped the output.
- Review your IP portfolio. Make sure your existing patents and trade marks still adequately cover what your business does – especially if AI has changed how you deliver products or services.
- Consider new filings. If you’ve developed a novel AI-powered system or process, explore whether patent protection is available. The recent court decisions have opened the door wider.
- Strengthen brand protection. Register your trade marks if you haven’t already, particularly in digital and e-commerce markets where AI-powered counterfeiting is increasing.
Frequently Asked Questions
Can AI be listed as an inventor on a patent application in Australia?
No. Australian law currently requires a human inventor. The DABUS case confirmed this. However, a human who uses AI as a tool to arrive at an invention can be named as the inventor.
Does copyright apply to AI-generated content in Australia?
It’s unsettled, but the general position is that purely AI-generated content (with no meaningful human authorship) is unlikely to attract copyright protection. Content created with AI assistance, directed by a human, is in a stronger position.
Should I disclose AI use in my patent application?
There’s no specific legal requirement to disclose AI use in Australian patent applications. However, transparency about the inventive process can help if questions about inventorship arise later.
Is AI-related IP protection the same overseas?
No. Different countries have different positions on AI and IP. The US, UK, EU, and China each have their own approaches. If you’re filing internationally, strategy is important. We work with trusted attorneys around the world to coordinate global filings.
Have a question about AI and IP? We’re happy to talk it through. Book a cost-free, obligation-free initial meeting with Ascot Martin. → contact-us