AI-driven solutions are an increasingly common part of new innovations – but where is the line when it comes to patentability? In this blog post, we examine the requirements placed on inventions involving artificial intelligence, the role of technical character, and why expert assistance can be crucial in obtaining the right kind of protection.
When assessing the patentability of inventions involving AI, many of the same legal principles apply as with other types of inventions. A good point of comparison is the patenting of computer programs, as identifying patentable features in software is often more challenging than in, say, mechanical inventions. Computer programs and AI-based solutions can often be useful even if they do not meet the criteria for patentability.
Like all patentable inventions, AI-based inventions must meet the requirements of novelty, inventive step, and industrial applicability. In the case of computer implemented inventions, the requirement for technical character is especially emphasized, meaning the solution must produce a technical effect. As such, discoveries, theories, or mathematical models are not patentable as such unless they provide a technical benefit. Since AI is based on mathematical models and computational methods, it is not considered technical on its own. Therefore, inventions that include AI as part of a broader whole are primarily evaluated based on how the AI contributes to technical improvements within the invention.
One example is measuring the progress of a physical process using a computer program. The resulting measurements can be further processed using a program or AI, and the process can then be controlled based on the processed results. In this way, the program gains context within a technical event. However, not all applications in the field of information and communication technology can be evaluated in such physical terms. Even so, the required technical effect may be present in inventions related to, for example, data compression or digital image and audio processing. Such inventions are therefore often patentable. In contrast, solutions whose sole purpose is to assist the user, for example, by classifying or presenting information—are more difficult to patent due to a lack of technical character.
According to patent law, inventions implemented on a computer must also meet the essential requirements of novelty and inventive step. Simply adding an AI component to a known device or method does not in itself make an idea inventive, unless the AI component improves the operation of the device or method from a technical standpoint. This is comparable to other computer-assisted inventions.
There is rarely a clear-cut answer as to whether an AI-based invention is patentable: such inventions often have more depth than what is initially apparent. It is therefore strongly recommended to consult a patent attorney with expertise in the field, who can assess the invention and the surrounding technology more broadly. At Berggren, we provide comprehensive and expert evaluations of patentability and guide our clients through all stages of the patenting process. Read more about our patenting services.
This blog was written in collaboration with European Patent Attorney Marjut Lattu.