The handling of AI of EPO and UKIPO
Although Europe and the United Kingdom used to be part of each other, Brexit has changed everything. Now, independently from the regulations and standards of the European Union, the United Kingdom has shown the world that they have their own way of dealing with problems. One of the subjects coming to light in recent times is the differences in the handling of AI of EPO and UKIPO.
The problem with AI and IP may have started since the foundation of AI, or even before that when the idea of artificial intelligence was just like the idea of people moving with the speed of light today.
People constantly debate about the probability of recognizing AI as an inventor and that the patent will be granted to the machine if he/she/it is the main inventor of that invention.
This idea has divided the IP community into 2 sides. One supports the idea of an inventor being an AI, but others strongly opposes the idea as this may violate basic human rights, leading to the consequence where AI might completely change human, at least on the legal aspect.
On this subject, both the EPO and the UKIPO have had their own opinions on how to deal with the problem. On the one hand, the European Patent Office (EPO) has issued explicit guidance with respect to its approach. On the other hand, the UK Intellectual Property Office (UKIPO) has announced that it will be releasing new guidance on examining the patentability of AI inventions under UK practice in a short time.
EPO and UK approaches to the problem of AI
As both has become the members of European Patent Convention, accordingly, the EPO and UKIPO each start from the same list of categories of subject matter that are excluded from patent protection.
With regard to the inventions made by AI, the exclusions are mostly related to computer programs and to mathematical methods.
As EU and the UK have both favored the computer implemented inventions, as well as inventions underpinned by novel mathematical algorithms, this means that this is the key evidence suggesting that these inventions are both patentable.
However, there must be a change in the claims, ensuring that it is not directed to an excluded category of subject matter “as such”, but rather to a solution to a technical problem.
In this regard, both IP offices have well-established practices for considering applications relating to excluded categories of subject matter.
The differences in the solving of AI problem
While there are many differences between the offices’ way of prosecuting AI problems, in the end, the overall outcome is with minimal dissimilarity.
This result is part of UKIPO’s considerable lengths to investigate outcomes of AI patent families prosecuted at the UKIPO and EPO.
As this similitude in outcome doesn’t necessarily involve the personal experience of attorneys prosecuting the relevant cases at first instance examination, there might be the difference in the decision between the 2 offices when looking at the prosecution histories for patent families.
However, as the pool of suitable patent families in which examination is well developed to draw useful conclusions is even smaller, it will be increadibly to provide definitive answers to the difference of UKIPO and EPO regarding this matter.
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