27 July 2023

Artificial Intelligence can be patented

With the fast explosion of artificial intelligence (AI), the European Patent Office – EPO – updated its guidelines clarifying some aspects on the possibility to patent it.

As a matter of fact, AI is abstractly patentable, on the condition that it is new and inventive, because it is a technology that can produce a technical effect.

The EPO Guidelines highlight right away, however, that it cannot be protected in itself, but only in function of its specific application.

It is stated:

“Artificial intelligence and machine learning are based on computational models and algorithms (…)” which “are per se of an abstract mathematical nature, irrespective of whether they can be “trained” based on training data” thus it excludes these models be patentable per se.

Vice versa, when a method of mathematical nature is applied to achieve a technical effect, it can be patented but only in function of said specific result.

The Guidelines still provides that:

“Artificial intelligence and machine learning find applications in various fields of technology. For example, the use of a neural network in a heart monitoring apparatus for the purpose of identifying irregular heartbeats makes a technical contribution. The classification of digital images, videos, audio or speech signals based on low-level features (e.g. edges or pixel attributes for images) are further typical technical applications of classification algorithms”.

Artificial intelligence: what can be patented?

Artificial intelligence systems can be patented only is they are functional in the achievement of a specific technical purpose. But what can be patented exactly?

This question has not been answered yet. Experts agree that AI can be patented from different points of view.

In particular, one can patent an AI’s training method, the software that execute this method, the apparatus using the system of artificial intelligence properly trained to achieve a specific technical result.

If someone wants to patent the method, the protection is granted to the specific method, implemented through a computer that includes a series of detailly-described phases, to educate a neural network that can be used in order to obtain a precise technical result.

The fact that the method is put into effect by a hardware and that it is used to obtain a technical result deprives it of theorical abstractedness and makes it patentable.

The computer program implementing the phases of the above-mentioned method that is used to achieve a technical result can also be patented.

Apparently, it may seem the same protection, but if there is an infringement, in the first case one can attack those who implement the method, in the latter also those who produce or sell the software that incorporates it, with a higher chance of success.

Lastly one can protect it by patenting a machine which uses a system of artificial intelligence trained so to obtain a precise technical result.

In short, there are many possibilities of protection and it is not difficult to imagine that many requests will soon arrive on the examiners’ desks to be examined.

Thanks to their decisions, clarity will start to be shed on these new types of patents and on the path which will be taken by researchers on artificial intelligence.

Artificial Intelligence can be patented

Artificial intelligence: what can be patented?

Laura Turini