The do’s and don’ts of patenting AI

AI is a key driver in the fourth industrial revolution, but right now the patentability of many AI systems and projects remains nebulous.

Typically, AI processes are treated as a computer program or mathematical method and, at the European Patent Office (EPO), fall outside the realms of patentability. But when you use AI to solve a technical or real-world problem, things change.

This nuance was one of many tips shared at a WIPR Patents Live session held yesterday, March 9, which explored how AI innovators can ensure that their technology is patentable.

In “Applied AI: Effectively Monetising Innovation”, two specialists in AI patenting from HGF, Lauris Kemp and Susan Keston explained how best to secure AI inventions at the EPO.

Tips and tricks

Kemp and Keston showed several case studies where AI inventions had been granted—or are in the process of being granted—by the EPO and explained how they did it.

Firstly, Keston, a patent attorney and leader of HGF’s applied AI technology group, told the audience how DeepMind, creators of one of the world’s biggest AI projects, managed to patent its augmented reality system.

“They initially tried to patent the augmented neural network system but at oral proceedings, the attorney was unconvinced by the application of the AI algorithm,” explained Keston.

“So how did they solve this? DeepMind representatives decided to add three new claims to the application. Claiming the DeepMind system was used for ‘identifying objects, text translation and for speech to text conversion’. These specific technical processes were what made it patentable.”

Turning to life sciences, patent director Kemp walked the audience through an AI cancer identification model by Gritstone Oncology that is on its way to securing a patent.

“The application describes the technology as a ‘computer implemented method for identifying one or more neoantigens that are likely to be present on the tumour cell surface’. The AI is used to identify the cells and which ones are most likely to be cancerous.”

Kemp added: “It is not patented yet but shows how you can get a patent without specifically mentioning AI.”

Future of patentability

When asked what the future of AI examination at the EPO will look like as the number of applications increases, Keston said: “I think that the EPO is increasingly using multidisciplinary teams.

“A lot of these applications are cross-disciplined so you might need a life-sciences expert and an AI expert to judge. So I think we will start seeing a lot more collaboration when it comes to examining applications.”

Kemp added: “I wonder if the EPO will follow in the footsteps of the Japanese Patent Office, which has a lot more on AI in their guidelines.”

“That's where the EPO might be headed, towards a more formulaic type approach. A lot of foreign patent offices are collaborating to try and come to a general consensus on how to handle these types of applications.”

Watch the session here.

WIPR Patents Live hosts weekly broadcasts from some of the best speakers in the technology sector in the form of virtual panel discussions, roundtables, webinars and presentations.

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