AI examination guidelines come into force at EPO
Guidelines on the patentability of artificial intelligence (AI) and machine learning technologies came into force yesterday at the European Patent Office (EPO).
In its annual update of its examination guidelines, the EPO—for the first time—provided guidance for examiners on the fast-growing area of AI and machine learning.
According to the guidance, AI and machine learning are based on computational models and algorithms which are of an abstract mathematical nature, regardless of whether they can be "trained" based on training data.
This means that the inclusion of references to AI and machine learning in the claimed subject matter, without other technical features, is unlikely to satisfy the EPO that an invention has the required technical character.
In an alert, law firm Cooley said: “For this reason, the use of terms such as a ‘support vector machine’, a ‘reasoning engine’ or a ‘neural network’ in the claims is highly unlikely to cause the claims to cross the technical character threshold because the EPO feels that such terms usually relate to abstract models devoid of technical character.”
“However, a technical application of AI and/or machine learning is likely to be considered to have a technical character if the application results in a solution to a technical problem,” said Cooley.
The EPO provided examples of applications of AI and machine learning that do have the necessary technical character.
One of these examples is a neural network in a heart-monitoring apparatus for the purpose of identifying irregular heartbeats.
The classification of digital images, videos, audio or speech signals based on low-level features (such as edges or pixel attributes for images) are further typical technical applications of classification algorithms.
Law firm Marks & Clerk added: “The precise level of specificity required for restricting the claims is however not fully known. What is certain though is that a generic statement of ‘for the control of a technical system’ will not be seen as a restriction to a specific technical purpose and will almost certainly be objected to.”
AI and machine learning are firmly on the agenda at the EPO—earlier this year, in May, the office held a conference addressing the challenges and opportunities of patenting AI.
And, in July, when António Campinos took the helm as the new EPO president, he said that any improvements made to the office would have to be supported by a “thorough digital transformation”.
“A true digital transformation could help us achieve greater efficiency, support quality further, help our examiners do their job better and help us make gains in many other areas, particularly with the rapid development of artificial intelligence,” added Campinos.
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