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Patent Offices around the world are currently investigating what AI-based innovations should and should not be susceptible to patent protection . Given the on-going efforts to harmonise patent law throughout the world , these investigations will not be carried out in isolation and we can expect there to be broad conformity in the eventual outcome . Nevertheless , we can also expect there to be differences in the detail .

At the European Patent Office ( EPO ), a key question is whether there is genuine ‘ technical ’ innovation . In this regard , running a purely mathematical algorithm ( such as an AI algorithm ) on a computer is not in itself generally considered to be technically innovative in Europe . Two exceptions are ( 1 ) if the AI algorithm is being executed in the context of a technical application , ( 2 ) if the AI algorithm is implemented on a computer in such a manner that it addresses a problem within the computer , for example an excessive requirement for computational resources .

In contrast , at the US Patent and Trademark Office ( USPTO ) a key question is whether the AI-based innovation involves more than just an ‘ abstract idea ’. US patent examiners have often considered AI-related inventions to be no more than abstract ideas and therefore ineligible for patent protection .

In short , whether an AI-based innovation is likely to be patentable depends on one or both of the nature of the data being processed – data corresponding to objective measurements suggesting possible patentable subject matter – and whether there is any interaction with hardware going beyond a general purpose computer . While the practice at the patent offices is evolving , which types of technological applications are more susceptible to patent protection are being continuously monitored by patent professionals .

Taking the leap

Even for AI-based technology innovation that meets the criteria for patentability , in practice getting a patent granted can be challenging . One challenge is ensuring that the technical information provided with the patent application describes in sufficient detail how the invention works , while also discussing sufficient possible modifications to provide adequate protection from a commercial viewpoint . Another challenge is , put simply , persuading a patent office examiner that it is worthwhile to move forward with an application .

The value of a patent is intrinsically linked to the value of the underlying technology . If the underlying technology provides a commercial advantage , then protecting that underlying technology with a patent will have commercial value . There are , however , several other considerations that need to be borne in mind when deciding whether to apply for patent protection , including :

FOR A SMALL COMPANY , EVEN THE COST OF APPLYING FOR AND MAINTAINING A SMALL NUMBER OF PATENTS IS SIGNIFICANT AND THEREFORE IT IS IMPORTANT THAT COST IS WISELY INCURRED .