Justus Kreuels - 30. October 2019

Artificial Intelligence (AI) in Patent Law

AI research

Current AI research is primarily working on software that can perform repetitive tasks (e.g. sorting or comparing datasets according to specific specifications) with a high computing capacity and on the basis of large amounts of data. Well-known examples are navigation systems, machine translations or speech recognition software.

However, computer-implemented processes can only be protected by patents to a limited extent, because computer programs themselves are not patentable. See also our blog article "Patenting Software" (October 30, 2018).

Protectability of AI

According to current law, AI as such cannot be patented, as there is a general exclusion of the patentability of algorithms. No patent protection is possible during the development phase of an AI-based product, in which the software is trained, modelled and tested.

Only a final AI industrial application/ technique or an AI-based product can be patented. The decisive factor is that in order to obtain patent protection, there must be a contribution to solving a specific technical problem by technical means, e.g. the control of an autonomous vehicle.

Technical nature and state of the art

Patents for inventions are granted in all fields of technology if they are new, based on an inventive step and are commercially applicable. Assuming this, an AI invention faces the following problems.

The potential in AI to be used as a modelled tool to solve certain problems does not fulfil the claim of technicality (= a technical problem has to be solved by technical means). In addition, the rapid progress of AI developments leads to the fact that AI could soon become the state of the art and thus the requirement of inventive step would no longer exist.

Patent attorneys advise in developing an IP strategy

Patent attorneys advise manufacturers and developers on the identification of technical fields of application for the respective computer-implemented idea already when filing a patent application. If it turns out that the invention is not accessible for patent protection, patent attorneys support their clients in developing strategies for the use of alternative protection instruments, e.g. in the field of copyright and competition law.

WIPO Technology Trends 2019: Artificial Intelligence

In its current study, WIPO counts more than 340,000 AI-related patent applications and approx. 1.6 million scientific publications since the emergence of AI in the 1950s until the end of 2016. The majority have been filed since 2013. Artificial intelligence as a future technology is therefore also having an increasing impact on IP protection.

Regarding Justus Kreuels:

Justus Kreuels, German and European Patent Attorney since 2011/2012, studied mechanical engineering at the TU Munich and the RWTH Aachen. He is co-founding partner of karo IP. A main focus of his practice is the enforcement of intellectual property rights in the field of mobile communication, Internet of Things (IoT), robotics, etc. in Germany.

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