New Guidelines on Artificial Intelligence and Machine Learning from the European Patent officeIn the beginning of November EPO issued new guidelines concerning the patentability of Artificial Intelligence (AI) and Machine learning (ML) inventions. AI and ML are based on computational algorithms and models with abstract mathematical nature and thus they are generally excluded from patentability. The issued guidelines try to solve this problem and provide a “backdoor” for AI and ML patent application and protection. They introduce the general criteria “field of application” which is going to be used for determining whether the mathematical models and algorithms contribute to the technical character of an invention and if is therefore patentable.

Two specific cumulative criteria must be taken into account in assessing whether the mathematical method in an invention can contribute to its technical character

1) the mathematical model’s “application to a field of technology”
2) the mathematical model’s adaptability to “a specific technical implementation”

EPO even provides with specific examples of the first criteria “application to a field of technology”, e.g:
“neural network in a heart-monitoring apparatus for the purpose of identifying irregular heartbeats makes a technical contribution
and
the “classification of digital images, videos, audio or speech signals based on low-level features”.

On the other hand, classifying text documents solely in respect of their textual or abstract data records or “telecommunication network data records” without any indication of a technical use being made of the resulting classification are AI and ML inventions excluded from patentability. Such types of operations cannot be regarded as primary technological, despite their mathematical properties.

Despite their flexibility, the measures and criteria set by the European Patent Office put some boundaries on which AI and ML inventions are subject to patent registration. In this rapidly evolving area, the provision of their legal protection within the European Union still seems to be a great challenge for inventors and developers.

Христо Йовчев

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Tags: AI