The current Guidelines for Examination at the EPO consider AI and Machine Learning to be pure mathematical methods (see Guidelines, G-II,3.3.1), in contrast to other areas of computer technology such as database technology (see Guidelines, G-II3.6.4).
While I have argued previously that this differential treatment ignores the technological reality of our days, in this article I will take a closer look at an aspect of the provisions in the Guidelines (specifically G-II, 3.3) in relation to the patentability of mathematical methods, and hence at present AI and ML.
G-II, 3.3 provides two routes to patenting an invention based on mathematical methods. Mathematical methods are, as such, not considered to be technical and hence not capable of supporting an inventive step. Mathematical methods that have technical character in that they involve technical considerations and contribute to the solution of a technical problem are, however, considered to contribute to an inventive step. The two routes for a technical character to be recognised for a mathematical method are a technical purpose (viz. the application of the method) or its technical implementation.
Read the full article at the link below.