Science and Technology have been unfolding new eras of growth. With each new ground breaking invention, there arises the need to protect the intellect invested in the innovations. However, granting protection can indeed be very challenging keeping in mind the high standards of pre-requisites for granting of Patents.

Recently, the European Patent Office (EPO) issued certain guidelines for patentability of Artificial Intelligence (AI) and Machine Learning (ML). The guidelines state that AI & ML are based on computational models and algorithms for classification, clustering, regression and dimensionality reduction, such as neural networks, genetic algorithms, support vector machines, k-means, kernel regression and discriminant analysis. The guidelines state that such computational models and algorithms are per se of an "abstract mathematical nature", irrespective of whether they can be "trained" based on training data. The guideline focusses on mathematical algorithms to have a technical character. It states that at the time of examining, the claimed subject-matter must be examined with expressions such as "support vector machine", "reasoning engine" or "neural network", since these terms usually refer to abstract models which are devoid of a technical character.

Further, the guidelines include a 'List of Exclusions'which covers - Mathematical Methods in addition to Discoveries, Scientific theories, Aesthetic creations, Schemes, rules and methods for performing mental acts, playing games or doing business, Programs for computers and Presentations of information. Thus, AI and ML claims based on the above list are likely to be excluded from Patents.

The major component for AI and ML to have a patent claim is the 'field of application'. Only if there is a technical applicability of the mathematical method adopted in the invention, it will be patentable. The next question that arises is to how one can assess technical applicability? As per the guidelines, it is stated that, there are two possible criteria,

1. the mathematical method's "application to a field of technology"


2. by being adapted to "a specific technical implementation".

The guidelines however, has no mention of the "specific technical implementation" but does indicate that the "application to a field of technology" will be an important indicator for the purpose of granting a patent.

Compiled by: Adv. Sachi Kapoor | Concept & Edited by: Dr. Mohan Dewan

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