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1 October 2018

New guidance on the patentability criteria for AI inventions

The European Patent Office has released new guidance which clarifies the patentability criteria for software relating to artificial intelligence and machine learning, as well as other computer-implemented “mathematical methods”.

The guidance confirms that patent protection is available for such software in a wide variety of technical application areas.  These areas include digital audio, image or video analysis or enhancement (e.g. detecting persons in a digital image, de-noising), speech recognition, encryption/decryption of electronic communications, and the technical application of classification algorithms (e.g. classification of digital images, videos, audio or speech signals based on low-level features).  Examples of technical application areas are also provided in the medical field, including medical diagnosis based on physiological measurements, and providing a genotype estimate based on an analysis of DNA samples.

The guidance also confirms that independently of any technical application, algorithms (including AI and machine learning algorithms) may also be patentable if they are adapted to a “specific technical implementation”.  This is in line with case law from the EPO Boards of Appeal indicating that a technical contribution may be found in algorithms which are “particularly suitable for being performed on a computer” in that their design is “motivated by technical considerations of the internal functioning of the computer”.  An example is the adaptation of a polynomial reduction algorithm to exploit word-size shifts matched to the word size of the computer hardware.

Click here to view the related sections of the new guidelines: 3.3. Mathematical methods (https://bit.ly/2NX8gCB) and 3.3.1. Artificial intelligence and machine learning (https://bit.ly/2Qp3RVP)

Further to the article above, our AI team has published further discussion on the patentability criteria for AI/ML inventions. Please click here to read a “deep dive” into patenting artificial intelligence.

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