One issue with patenting AI-related inventions is how to claim subject matter that will be of commercial value to the applicant. This is not as straightforward as in many other technical fields because of the way AI inventions are developed and used. Typically, this requires a stage of selecting and/or designing a machine learning model, the careful curation of data for training the model, training, testing and refining the model. The result can be a complex algorithm that cannot always practically be defined in words, as is needed for a patent claim.
The ideal protection for the applicant would often include protection for the trained model, which would enable the applicant to have a monopoly over the provision or use of the model itself. If the protection from the patent only covers the development aspects, the patent may not be usable to stop third parties distributing or using copies of the model.
While the EPO’s case law on AI-related inventions is at an early stage, there is some established EPO practice that could be helpful in informing us how to protect AI-related inventions. In general, the EPO considers there to be two types of claim: a claim to a product and a claim to a method. However, there are two special provisions that blur this distinction and enable a product to be protected using method terminology, rather than describing the product itself. This might provide some promising opportunities for protecting AI inventions by protecting a model obtained by the design and/or training process.
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