AI is an advanced and powerful software, which is used for many applications in many different businesses. AI already has its place in things like social media, healthcare, and autonomous transport systems, and new applications are emerging almost daily. Great efforts and investments are put into developing and refining the applications. Can the results be protected to enable commercialization and dissemination? Is it possible to patent the results?
Patents are a time-limited exclusive right to an invention. Anyone holding a patent may prevent others from using the invention, or allow others to use it for payment by license. The inventions which can be patented are those which provide a technical solution to a problem. The technical solution must be new, and thus not previously shown or used anywhere in the world. It must also have an inventive height, which (very simplified) means that the invention must not be obvious to anyone skilled in the relevant technical field.
The limitation to “inventions” which are “technical solutions” means that much cannot be patented, including mathematical methods and computer programs. Such are not in themselves considered technical solutions because they have no technical effect.
However, the application of software in a physical system may constitute a patentable invention. An invention that produces various light signals guided by a software-based analysis of signals from pressure sensors in the street contains software and produces a technical effect, and could be patentable (if only the invention had been new …).
In order to better understand where the limit for technical effect goes, one can turn to the European Patent Office EPO and practices regarding granted and rejected patents. In a decision by EPO’s Board of Appeal, T 1358/09 of 2014, the invention concerned a method and apparatus for classifying text.
By first constructing a classification scheme for text, the invention could then be utilized to efficiently and flexibly use the method and apparatus for analyzing texts and classifying them against the scheme. The applicant stated that the classification could be made more accurate, safer and more objective than a human could do.
The Board of Appeal rejected the application on the grounds that a comparison of the contents of two different text documents to determine whether they belong to the same “class” was not a technical task, that the comparison with human ability was not an appropriate starting point for determining whether something has technical effect or not, and the fact that an algorithm produces repeatable results does not imply a technical effect.
With the constantly new AI-related inventions, the boundary of technical power is increasingly chiseled. EPO’s Enlarged Board of Appeal, the highest authority in the European patent system, will shortly be considering an issue of intelligent simulation that can have a significant impact on the application of AI in many design and design contexts.
The question concerns an invention that is a model for simulating pedestrian movement in groups, which can be used in the design of environments such as train stations and other places where many people move. The patent application was initially rejected on the grounds that a simulation has no technical effect. The applicant appealed to the Appeals Chamber, claiming that the simulation’s steps had a technical effect because they related to physical parameters (“people cannot walk through walls”) and because they provided a more accurate simulation of the movement of crowds.
But in its decision in T 489/14 on February 22 this year, the Chamber of Appeal was doubtful and held that the technical effect required at least some kind of direct link to physical reality, as an influence on or measurement of a physical object. The simulation of the movement of the crowd, which in itself constitutes a physical system, on the other hand, involved only a cognitive process for theoretically verifying the design of the environment, which the Chamber of Appeal considered to be “fundamentally non-technical”. However, in light of previous EPO practices on computer-aided simulation and the great economic significance of such simulations, the Board of Appeal wants help with the assessment of the invention. Therefore, questions are sent to the Big Appeal Chamber, which through their answers can clarify whether a computer-aided simulation of physical systems has technical effects or not.
The answer to the question in the title is thus that the “intelligence” itself in the form of software cannot be patented, but that applications, where the intelligent software is used to produce a technical effect, can be patented. What is a technical effect and not in AI-related contexts are brought into question with new inventions, and the Big Chamber’s comments on computer-aided simulation will be monitored with great interest and referred to in this blog?