Protecting And Navigating Intellectual Property For Artificial Intelligence Based Technologies

Technological advances in Artificial Intelligence (AI) technology are accelerating due to the combination of machine learning breakthroughs, increases in computing power, and the emergence of big data analytics. Cloud based computing has also accelerated AI development, with more readily available and less expensive computing power for increasingly complex manipulations of information and the performance of difficult tasks by computers, such as facial recognition. The advent of big data analytics provides robust data training sets that bring AI technology to life.

A group of high profile technology companies including IBM, Google, Amazon, Microsoft, Samsung, and AT&T have been pioneering and patenting fundamental AI technology directed to machine learning, neural networks, natural language processing, speech processing, expert systems, robotic and machine vision. In turn, this fundamental AI technology is being adapted and utilized within a wide variety of industries including health care, manufacturing, and transportation to create AI-based products that are better, more useable and intuitive than before (e.g. smart surgical tools, warehouse robots, self-driving cars, etc.)

As with any burgeoning field of innovation, companies who develop and sell AI-based technology must assess the risks of doing business in the context of third-party IP rights, and develop strategies to capture and protect their own associated IP rights. At their root, both of these challenges require an assessment of the availability and scope of intellectual property protection. While many of the same considerations that apply to traditional technologies are relevant, there are a number of key aspects specific to developing patent, trade secret, and copyright protection of AI-based products.

Patent Protection

Patents protect the functionality of inventions which are new, non-obvious, useful and which consist of patent eligible subject matter. Patents provide national rights to prevent others from making, using or selling the protected invention in a specific jurisdiction. Patents can be strategically used to achieve or maintain position in the marketplace, increase share value and/or secure investment depending on business needs.

The U.S. Patent Office has been quietly issuing patents in ever-increasing numbers for fundamental AI technology. Over the past five years the number of patents issued under patent class 7061, a class dedicated to AI data processing systems, has seen an increase of 500%. While increasing numbers of AI technology patents are issuing, as with other kinds of computer-implemented inventions, AI-based inventions are generally vulnerable to being considered ineligible subject matter.

The current subject matter eligibility test in the U.S. requires the invention to be evaluated to determine whether it is directed to a law of nature, natural phenomenon or an abstract idea and if so whether the invention provides "significantly more"2. Abstract ideas, laws of nature, and natural phenomenon are considered by U.S. courts to be "the basic tools of scientific and technological work" however the term "abstract" is not clearly defined. As a result, patent applications (including applications for computer software) that approach this very blurry line have faced significant challenges during prosecution. U.S courts have consistently expressed concern that monopolizing tools such as abstract ideas by granting patent rights impedes innovation rather than promotes it.

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