Issues in patenting ‘artificial intelligence’ from an EPO perspective

Abstract This article demonstrates that artificial intelligence (AI) is generally not a useful category in patent prosecution and patent law to address questions of patentability or inventorship. It has been suggested that inventions relating to AI will pose major problems for patent prosecution, for example regarding patentable subject-matter, sufficiency of disclosure, the level of inventive step or the question of inventorship. In this context, far-reaching assumptions are made about the nature and the powers of AI which are often overstated and distract from real issues. On the one hand, AI defies a precise definition, in particular one which could distinguish AI from other software. Indeed, many questions that arise in patenting AI inventions are also true, one way or another, for other, ‘conventional’ software. On the other hand, certain AI inventions may be a challenge for applicants to explain convincingly why their invention works and how. In view of this, the problem of AI inventorship that has recently dominated the public discussion is of less practical concern.