Yes – you can patent AI and ML inventions.
The European Patent Office considers AI and ML algorithms to be abstract mathematical methods. Claims to AI and ML related inventions are therefore examined just like other mathematical inventions.
A mathematical method claimed as such, in the absence of other features, is excluded from patentability. How then can you achieve patent protection for your AI/ML invention?
Implementing a mathematical method on a computer clears the exclusion hurdle. We’re now running on the computer-implemented inventions track, a well-trodden track for our experts at TLIP. The next hurdle to clear can be a high one: inventiveness.
For a mathematical invention to be considered technical and potentially inventive, its claim must include at least one of:
- an application of the mathematical method to a field of technology; and
- an adaptation of the mathematical method to a specific technical implementation.
- Technical application
A method is considered applied to a field of technology if:
- the method serves a specific, not generic, technical purpose; and
- the claim is, implicitly or explicitly, functionally limited to the specific technical purpose.
To ensure the claimed method serves a purpose, you must establish a causal link between the steps of the defined method and a technical effect that the method steps produce once carried out.
- Specific technical implementation
A mathematical method may also be inventive when its claim is directed to a specific technical implementation of the mathematical method.
The mathematical method must be adapted for the claimed implementation. This means that, in designing the method to work on a computer, the inventor must be motivated by technical considerations of the internal functioning of the computer. In other words, a claim to a mathematical invention must reflect how the mathematical method interacts with the features of the computer to successfully implement the method.
To bear in mind
Attorneys and applicants discussing the preparation or prosecution of a patent application for a mathematical invention, then, should discuss carefully what the outcome of the method is and whether the method as claimed achieves this outcome. Further, attorneys and applicants should consider whether the inventor was specifically motivated to adapt the method to work on a computer.
Ensuring that the claim in particular, and the application in general, address one or both of these considerations will put the application in good stead to clear the all-important inventive step hurdle and cross the finish line to grant.