Artificial Intelligence Inventions at the EPO
1. The European Patent Office (EPO) has hosted an online conference in December 2020 about one of the fastest moving fields driving the Fourth Industrial Revolution: artificial intelligence (AI).
Even though often not realized by the users, AI is already omnipresent for numberless people worldwide in day-to-day life. For example, AI is used to recommend online purchases, power virtual assistants and even for predictive maintenance in smart factories. However, AI imposes two interesting questions for the patent systems all over the world.
- The first asks to what extent AI-related inventions can be protected by patents.
- The other question explores the use of AI by patent offices to improve operational efficiency.
The conference built on the EPO's acknowledged lead in the patenting of Computer Implemented Inventions (CII). It also took into consideration the latest initiatives relating to AI at the level of European institutions.
At the conference, the EPO provided an update on the latest strategic projects with its IP5 partners and look at the legal aspects and the tools that could influence the work of patent offices worldwide.
The vast expansion of use of AI in recent years is due to several inter-related factors like: improvements in processing power, the development of specially adapted computing architectures, the availability of large volumes of data, as well as better AI core models and techniques.
Many AI models and techniques can easily be used in many technology fields. This property in combination with big data, cloud computing, 5G or the internet of things (IoT), enables AI to solve technical problems in almost any domain.
2. AI and Patentability
The EPO has responded to the emergence of AI in patent applications by refining its approach to patentability of inventions involving AI.
AI is considered as a branch of computer science by the EPO, and therefore inventions involving AI are considered as "computer-implemented inventions" (CII). In this context, the Guidelines for Examination in the EPO, F-IV, 3.9 define the term CII as inventions that involve computers, computer networks or other programmable apparatus, whereby at least one feature is realized by means of a program.
Computer-implemented inventions are treated differently by patent offices in different regions of the world. The European Patent Convention (EPC) excludes computer programs "as such" from patent protection. Nevertheless, inventions involving software are not excluded from patentability as long as they have a technical character.
Like any other invention, in order to be patentable under the EPC, a computer-implemented invention must not be excluded from patentability and must fulfil the patentability requirements of novelty, inventive step and susceptibility of industrial application. The technical character of the invention is important when assessing whether these requirements are met.
The same approach applies to computer-implemented inventions related to AI (see, in particular, the Guidelines for Examination in the EPO, G-II, 3.3.1 "Artificial intelligence and machine learning").
AI is based on computational models and mathematical algorithms that are per se of an abstract nature. Nevertheless, patents may be granted when AI leaves abstract algorithms by applying it to solve a technical problem in a field of technology.
In addition, a technical solution to a technical problem can also be provided when the invention is directed to a specific technical implementation of AI, i.e. one that is motivated by technical considerations of the internal functioning of a computer (e.g. a specific technical implementation of neural networks by means of graphics processing units - GPUs).
The EPC thus enables the EPO to grant patents for inventions in many fields of technology in which AI finds a technical application. Such fields include, but are not limited to, medical devices, the automotive sector, aerospace, industrial control, additive manufacturing, communication/media technology, including voice recognition and video compression, and also the computer, processor or computer network itself.
This IP Alert is for information purposes only and does not constitute legal advice.