Written by: Micah Drayton, Bianca Lindau, Takahiro Miyazaki, and Crystel Saraie

Artificial Intelligence (AI) has revolutionised industries ranging from healthcare to finance, raising complex questions about intellectual property (IP) rights. This article explores the intersection of AI and IP, distinguishing what can and cannot be patented, particularly in the realms of generative and open AI. Additionally, we analyse how different jurisdictions—including the US, UK, Germany, and Japan—approach AI patentability.

Understanding IP Protection for AI-Driven Innovations

AI-related innovations can fall under several types of intellectual property (IP), but patents are particularly critical. Patents protect novel, non-obvious, and useful inventions or improvements—key criteria when seeking protection for AI-related technologies.

What AI-Related Inventions Are Patentable?

Patent offices globally have developed criteria for granting patents related to AI. While approaches may vary slightly by jurisdiction, certain categories are generally accepted as patentable when a human is the inventor:

  1. Improvements to AI Algorithms and Software

      • Patentable if AI is applied in a technical and industrially applicable manner, or if they improve on the function of previously existing AI technology itself, rather than being mere abstract mathematical formulas. Examples include new neural network architectures for diagnostics, machine learning models improving computer operations.
  2. Inventions that Incorporate AI

      • Hardware and systems that include AI as a component or portion of the invention can usually be patented by human beings. Examples include AI-powered medical imaging tools, AI-assisted robotics in manufacturing and autonomous vehicle navigation systems.
    • Specific, Practical Applications of AI

        • Certain AI applications can qualify for patents by human beings, to the extent that they involve improvements to technology. Examples include AI-based fraud detection, drug discovery tools using deep learning and AI-enhanced automation in industrial processes.

    What Is Not Patentable in AI?

    Patent offices often exclude certain AI-related subject matter:

    1. Abstract Algorithms & Mathematical Concepts

        • Abstract AI algorithms are generally rejected as they are seen as mathematical concepts rather than patentable inventions.
    2. AI-Generated Inventions Without Human Input

        • Inventions created entirely by AI, with no human involvement in conception or contribution, are not patentable.
    3. Open-Source/Public AI Models

        • Once AI systems like ChatGPT or Stable Diffusion are publicly disclosed, patenting their underlying methods becomes challenging.

    Jurisdictional Approaches

    United States (USPTO):

    • Allows patents for AI-assisted inventions and improvements to AI.
    • Requires human inventors.
    • Emphasizes practical application and human contribution.

    United Kingdom (UKIPO):

    • Similar to the US, protects AI-involved inventions with a human inventor.
    • Focuses on whether the invention solves a technical problem.

    Germany (EPO/DPMA):

    • Requires “technical character” for AI inventions.
    • Permits patenting AI-related technologies, but only if a human is named as the inventor.

    Japan (JPO):

    • Permits AI-assisted inventions and improvements in business methods.
    • Requires that the inventor be a natural person.

    Conclusion

    Improvements to AI and devices that use AI can absolutely be patented, provided they meet the established legal standards and a human inventor is involved. Innovators should ensure their AI-related inventions demonstrate technical application and document the human contribution carefully to increase the likelihood of patent approval.

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