Short notice on Conference regarding Patenting Artificial Intelligence held at EPO in Munich on 30.5.2018

ICT Thematic Group of the EPPC (collective article)

The first EPO Conference dealing with patenting Artificial Intelligence was held in Munich on May 30, last.

Various contributions were given by patent practitioners in IP Firms and Industries, as well as by EPO directors and Artificial Intelligence Experts.
Starting from the latter, explanations were given as to what kind of Artificial Intelligence (AI) we can have, namely three levels of AI:

1) Artificial Narrow Intelligence (AI) dedicated to specific task; 2) Artificial General Intelligence (AGI) which is capable of transferring knowledge from one domain to a new domain; 3) Artificial Super Intelligence (ASI), which is theoretically capable of surpassing human intelligence

Today, we are seeing tangible results from the first type of AI only. For the AGI, we have scientific studies but no more, and the ASI is still science fiction.
There is a diffused sentiment that the trend is that software will widely become AI, which in turn will become super-software (everywhere - in every field of technology, well beyond ICT).
Some speakers pointed out that the patent system had 20 years to adapt to software patents, but for AI there are perhaps 5 years only, so we have to tackle this challenge now.
Patents granted now will most likely be very foundational, could have very far-reaching impacts on competition, etc. - discussion should not only take place within patent office but within the society, comprising discussion on ethics.
The Directors of the EPO showed that the EPO has provided so far a predictable approach to ICT innovations, and it is preparing for a rapid AI patents growth. To this end, an understanding of technicality and ICT procedures is vital, and this is why the EPO has set up

  • Interdisciplinary technical divisions of three examiners for each application;
  • Annual improvements to CII content of the Guidelines.

Concerning the latter, the November 2018 edition of the Guidelines will feature new sections on mathematical methods and AI.
Concerning again the work on the Guidelines, the ICT Unit Director Grant Philpott thanked the ICT Thematic Group of the epi European Patent Practice Committee for having proactive and fruitful discussion on the matter each year. In fact, this recognition was given while introducing one of the member of the ICT thematic group who was invited due to the above close collaboration, and spoke in a panel about issues in patenting AI focusing on how the concept of equivalence may change both during examination and in infringement court proceedings.
Further, the EPO explained that 50 examiners have deep knowledge in AI only, while 1080 examiners in ICT are learning to be experts. This will guarantee that a sufficient number of EPO examiners will have the knowledge to search and examine in this fields.
As a proof of the work in the filed by the EPO, posters were shown in a separate room for the following AI patents: US9431003, EP3010585, EP2421439, EP3023911, EP2965267.

In the discussion on prosecution by the various panels, some tips were given:

  • More discussions with inventors what are the technical effects/technical features, and when drafting consider feature by feature to determine whether to generalize or to be more specific or more concrete, with details;
  • Use available claims formats considering distributed character of the AI software; focus on implementation/use case specific solutions and do not expect to obtain protection for very general solutions;
  • Use the "chemistry approach":
    • perform comparative tests over the whole claimed range to confirm the technical effect and advantage over the prior art
    • introduce as many results as possible in the application,
    • provide supplementary material,
    • utilize product by process claims (method of producing a product).

On the more theoretical and futuristic side, the following issue are at stake:

  • who is the inventor, a person or AI?
  • reverse engineering more and more difficult - how to detect infringement?
  • what kind of claims one should have;
  • a balance between content and costs will be more and more difficult: patent applications should be more detailed, carefully define terms, and have a wide variety of applications
  • how to rebuild portfolio, partnerships and cross licensing;
  • who is a skilled person: a combination of person and AI? Or should it be a skilled AI?

Finally, the issue of adequacy of the present patent protection was discussed, and suggestions for changes were given, such as having a patent grant within 12 to 18 weeks for start-ups and removing the 18 months' delay to publish applications.

Grant Philpot announced that in November in the Hague there will be a similar conference for patenting block chains, before closing the Conference.