The European Patent Office (EPO) recently released, and for the first time, guidelines concerning patentability of inventions related to or based on artificial intelligence (AI) and machine learning algorithms.

As part of the annual review and subsequent publication of the EPO’s Guidelines for Examination, a dedicated but small section has been added.

In summary the small added section indicates: Artificial Intelligence and machine learning algorithms can be patented only in their contextual setting of a machine, device or manufacturing process, but not on a generic basis.

The Guidelines provide a small number of examples of patentable subject matter including;

  • the use of a neural network in a heart-monitoring apparatus
  • the use of classification algorithms in the classification of digital images, videos and audio or speech signals

The Guidelines also point to examples that are not considered technical subject matter, and thus patent-ineligible including:

  • classification of text documents solely in respect of their textual content without the classification being subject to further technical transformation is not patentable subject matter, given it serves solely a linguistic (i.e. artistic vs technical) purpose.
  • classifying (using AI) telecommunications network data records without any indication of a technical use being made of the resulting classification is also not per se a technical purpose, regardless whether the classification algorithm has ‘valuable mathematical properties’ such as robustness.

Developers of Artificial Intelligence and Machine Learning Algorithms

The take home message is that developers of AI and machine learning algorithms:

  • will need to claim their computational models and algorithms for classification, clustering, regression and dimensionality reduction in a technical environment
  • will need to identify how these support the achievement of a technical purpose / outcome, in order to pass the initial hurdle of patent-eligibility
  • furthermore, newness and ingenuity of the AI and mathematical algorithms per se will not be determinative of the additional patentability requirement of novelty and non-obviousness of inventions comprising AI and machine learning aspects
  • the question to be answered is whether application of AI and machine learning algorithms in a specific technical context / setting in light of the prior art base against which the invention is assessed, is new and non-obvious.