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USPTO vs EPO
US Patent and Trademark Office (USPTO)
U.S. Patent and Trademark Office (USPTO) –
In January 2019, the USPTO issued *revised guidance on patent eligible subject matter.
The revised guidance was generally directed to software applications, but one of the hypothetical examples (EXAMPLE 39) was directed to the Artificial Intelligence(AI) and Machine Learning(ML) .
*See Revised Guidance here and the Accompanying Hypothetical Examples (Examples 39 is directed to AI) here
European Patent Office (EPO)
The EPO provided new guidance on Artificial Intelligence(AI) and Machine Learning(ML) examination in November 2018. This can be found here . It generally describes the need for a technical purpose in the application.
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uspto
U.S. Patent and Trademark Office (USPTO) – HYPOTHETICAL EXAMPLE CLAIM (EXAMPLE 39)
A computer-implemented method of training a neural network for facial detection comprising: collecting a set of digital facial images from a database;
applying one or more transformations to each digital facial image including mirroring, rotating, smoothing, or contrast reduction to create a modified set of digital facial images;
creating a first training set comprising the collected set of digital facial images, the modified set of digital facial images, and a set of digital non-facial images;
training the neural network in a first stage using the first training set;
creating a second training set for a second stage of training comprising the first training set and digital non-facial images that are incorrectly detected as facial images after the first stage of training;
and training the neural network in a second stage using the second training set.
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uspto
There may be concerns that AI will be difficult or almost impossible to patent but that doesn’t seem to be the case because the USPTO director has stated that :
“As director of the USPTO, one of my top priorities is making sure the United States continues its leadership when it comes to innovation, especially in the emerging technologies of the future, including AI and machine learning. To that end, we must harness our long history of innovation, born of our nation’s founding document and perpetuated by our people’s innovative spirit, and apply the same spirit to AI technologies.”
So it looks like the USPTO is making strides to allow the patenting of AI and ML
However, there are no official guidelines as of yet, except the general revised guidelines about patent eligible subject matter.
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epo
EPO – According to the EPO’s guidance, the invention should have a technical purpose. Subject matter is patent eligible if it is tied to something “technical” or has a “technical purpose.”
EXAMPLE: “the use of a neural network in a heart-monitoring apparatus for the purpose of identifying irregular heartbeats” and the classification of “digital images, videos, audio or speech signals based on low-level features (e.g. edges or pixel attributes for images)” have a technical purpose or application, are patent eligible.
However, “[c]lassifying text documents solely in respect of their textual content” is not patent eligible because it doesn’t have a technical purpose, but rather it has a linguistic purpose.
ANOTHER EXAMPLE: The EPO has indicated that “[c]lassifying abstract data records or even ‘telecommunication network data records’ without any indication of a technical use being made of the resulting classification is also not per se a technical purpose.”
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Summary
AI and ML claims presented to the USPTO and EPO must be more than just mathematical concepts, and must have some type of “technical purpose” or “practical application.”
Real world examples of how the invention is used might help give it a technical purpose.
It should not be abstract
Try to, avoid mathematical equations in the claims, although claim features may still be based on mathematical concepts.
Including equations in the claims are not prohibited but may trigger extra scrutiny from examiners.
Actual data processing performed by many A.I. systems is not performed by predefined computer algorithms and extends well beyond mental processes and abstract ideas. So are AI inventions patentable? The answer is YES as long as other statutory requirements (e.g., novelty and non-obvious) are also satisfied.
Though not prohibited, try to avoid terms such as such as “neural network” in the claims. The invention should have a technical purpose.
EXTRAS
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Who is THE inventor?
Since an AI system can create a new innovation on its own, without a human inventor, even if it may require significant data input and instructions, who is the INVENTOR?
This has not determined officially yet. It might ultimately depend on how the Claims are worded.
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USPTO SEEKING INPUT
In addition to hosting a conference on AI earlier this year, the PTO recently announced that it is exploring its approach to AI and is seeking public input on a variety of AI-related issues. The deadline for comments ended recently. Apart from EXAMPLE 39 in the revised guidance of January 2019, there haven’t been any other official guidelines from the USPTO about AI, but they are expected to come soon. So we might have to wait for a bit to get more definitive instructions.
