Global Artificial Intelligence Patent Survey

Introduction Research and development conducted worldwide is currently driving the “Fourth Industrial Revolution” (“4IR”), which encompasses three major fields: (1) physical technologies, (2) biological technologies, and (3) digital technologies.

[1,2] Corresponding to the rise of 4IR digital technologies, the number of international artificial intelligence (“AI”) based patent filings has expanded rapidly over the last few years, mostly concentrated in the United States and Asia.

[3] According to a 2016 study, approximately 75% of all AI-related patent publications in the world come from three jurisdictions: China, Japan, and the United States.

[4]  Although the majority of AI-related patents are filed in these countries, Europe is also seeing substantial increases in such patent filings.

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display(div-gpt-ad-1439400881943-0); }); This article explores AI-related patenting trends in various international jurisdictions and provides information on recent developments, common patentability issues, and tips for navigating similar trends in United States patent prosecution.

China China has overtaken the United States in the number of annual AI-related patent applications.

[5]  Recent studies revealed that China accounts for around 37% of published AI-related patent applications [6] and about 22% of granted AI-related patents in the world.

[7] Two main factors appear to be driving these numbers.

  First, China was the only jurisdiction where the universities filed more AI-related patent applications than its corporations.

[8] Second, the amount of investment in Chinese AI-based companies is high and expectations for returns are even higher.

  Investors gave $4.

5 billion to more than 200 Chinese AI-based companies between 2012 and 2017, and the country’s goal is to foster a $1 trillion AI industry by 2030.

[9] Similar to the United States, subject matter eligibility requirements can be a barrier to prosecuting AI-related patent applications in the Chinese Patent Office.

[10] When drafting Chinese patent applications, practitioners suggest incorporating as many details about the invention as possible in the disclosure.

[11] Japan The Japanese Patent Office (JPO) appears to be a patent-friendly forum for obtaining protection for AI-related innovations, which could prove advantageous for patent owners.

  Recent allowance rates for business-related inventions (including AI inventions) were around 70%, [12] which is significantly higher than corresponding rates for business method patents in the USPTO (12.

7%) [13] and the European Patent Office (EPO).

[14]  Such a high allowance rate in Japan may be due, at least in part, to the publication of JPO case studies that provide clear guidelines for examining AI-based inventions.

[15] Furthermore, in 2016, the JPO hosted a seminar providing insight for drafting and prosecuting patent applications related to AI technology.

[16]  During the seminar, it was suggested that the higher allowance rate may be due to the consideration of both technical and non-technical subject matter during examination.

  [17] Europe AI-related patent applications in Europe grew at a 54% annualized rate from 2014 to 2017.

[18]  The European Patent Office (EPO) has expressed a dedication to developing examination practices which are friendlier to computer implemented inventions, including AI-related subject matter.

  For example, the EPO adopted a new approach to interdisciplinary software patent applications which can now be examined by a team of three examiners with diverse technical backgrounds.

  Additionally, the EPO aims to speed up examination according to a 12-18 month timeline from filing to either allowance or final rejection.

Furthermore, in May 2018, the EPO held a conference entitled “Patenting Artificial Intelligence” centering on the challenges and opportunities of patenting AI-related innovations.

[19]  Experts emphasized that AI-related applications in the EP should address technical considerations of the internal functioning of a computer, such as speed and/or computational load.

[20] United States Patent applicants seeking to protect AI-related innovations in the United States face many of the same issues as those described in other jurisdictions, including potential ineligibility of subject matter relating to abstract ideas and mental processes.

  Claiming AI-related innovations can be difficult because, by some interpretations, AI is a computer-implemented mental process.

[21]  A common best practice for overcoming this issue in the US is to claim relatively narrowly, to keep the solution and the problem rooted in the specific technology, and to avoid focusing on a particular algorithm or abstract method.

[22] The Northern District of California confirmed this approach by invalidating claims directed to automatically generating an “ensemble” of machine learning models under § 101 stating that it was directed towards “mathematical processes that not only could be performed by humans but also go to the general abstract concept of predictive analytics rather than any specific application.

” [23] Conclusion As AI-based innovations become an ever-increasing presence in our daily lives, it appears inevitable that an expanding number of patent applications will be filed to protect such inventions.

  Certain international jurisdictions have been amenable to clarification and adjustment of their patent laws and examination procedures with respect to AI, while others have remained relatively unchanged.

  It is promising to see both the Japanese and European patent offices clarifying expectations and streamline examination procedures in these emerging technical areas.

  As US practitioners, it can only be hoped that the USPTO will establish similar initiatives to expedite and clarify AI-based patent prosecution as the 4IR marches forward.

References [1] Bernard Marr, The 4th Industrial Revolution is Here – Are You Ready?, Forbes (Aug.

13, 2018), https://www.

forbes.

com/sites/bernardmarr/2018/08/13/the-4th-industrial-revolution-is-here-are-you-ready/#31e5e139628b.

[2] Clare Dillon, AI: Our Changing World, EPO Patenting Artificial Intelligence Conference (May 30, 2018), http://documents.

epo.

org/projects/babylon/acad.

nsf/0/D9F20464038C0753C125829E0031B814/$FILE/presentations.

zip.

[3] Michael Webb et al.

, Some Facts of High-Tech Patenting 1, (Nat’l Bureau of Econ.

Research, Working Paper No.

24793, 2018).

[4] China Academy of Information and Communications Technology, 2018 World AI Industry Development Blue Book 13 (2018), available at http://www.

caict.

ac.

cn/kxyj/qwfb/bps/201809/P020180918696200669434.

pdf.

[5] Id.

[6] Id.

[7] China’s AI Patents Account for 22 Pct of World’s Total: Official, Xinhuanet (May 10, 2018), http://www.

xinhuanet.

com/english/2018-05/10/c_137170101.

htm.

[8] China’s Research Institutes File More AI Patents Than Businesses: Report, China IP Magazine (Aug.

14, 2018), http://www.

chinaipmagazine.

com/en/news-show.

asp?id=10021.

[9] Vikram Barhat, China is Determined to Steal A.

I.

Crown From US and Nothing, Not Even a Trade War, Will Stop It, Cnbc (May 4, 2018) https://www.

cnbc.

com/2018/05/04/china-aims-to-steal-us-a-i-crown-and-not-even-trade-war-will-stop-it.

html.

[10] Yue Li and Xiaoming Zhang, Intellectual Property Protection for AI in China, Liu Shen & Associates (July 4, 2018), http://www.

liu-shen.

com/Content-2773.

html.

[11] Yue Li and Xiaoming Zhang, supra note 13.

[12] Nobuyuki Taniguchi, Recent Developments on Software-related Patents in Japan, Nakamura & Partners (Aug.

18, 2017), http://www.

nakapat.

gr.

jp/en/legal_updates_eng/recent-developments-on-software-related-patents-in-japan/.

[13] Business Methods Allowance Rate, USPTO, https://www.

uspto.

gov/patents-getting-started/patent-basics/types-patent-applications/utility-patent/business-methods-27.

[14] Taniguchi, supra note 19.

[15] Id.

[16] Id.

[17] Id.

[18] Yann Ménière, et al.

, Patents and the Fourth Industrial Revolution 11, European Patent Office (Dec.

2017).

[19] EPO Hosts First Conference on Patenting Artificial Intelligence, European Patent Office (May 30, 2018), https://www.

epo.

org/news-issues/news/2018/20180530.

html.

[20] Koen Lievens, Patenting Artificial Intelligence, EPO Patenting Artificial Intelligence Conference, May 30, 2018, https://www.

epo.

org/learning-events/events/conferences/2018/ai2018.

html.

[21] Benjamin Bai, Challenges in Drafting Patent Applications for AI-related Inventions, EPO Patenting Artificial Intelligence Conference, May 30, 2018, https://www.

epo.

org/learning-events/events/conferences/2018/ai2018.

html.

[22] Id.

[23] PurePredictive, Inc.

v.

H2O.

AI, Inc.

, No.

17-CV-03049-WHO, 2017 WL 3721480 (N.

D.

Cal.

Aug.

29, 2017), aff’d 741 F.

App’x 802 (Fed.

Cir.

2018).

About the Authors Aaron Gin, Ph.

D.

is a partner with McDonnell Boehnen Hulbert & Berghoff LLP.

Dr.

Gin has broad experience in preparing and prosecuting U.

S.

and foreign applications for patents and trademarks.

He provides advice in support of patent validity, infringement, patentability analyses, and litigation matters in the electrical and computing technology areas.

Dr.

Gin has experience with Inter Partes Review (IPR) proceedings and he has also authored amicus curiae briefs for patent cases in the U.

S.

Court of Appeals for the Federal Circuit and the Supreme Court of the United States.

Margot M.

Wilson is an associate with McDonnell Boehnen Hulbert & Berghoff LLP.

Ms.

Wilson concentrates her practice on intellectual property matters including patent prosecution, litigation, and providing patentability and infringement analyses in the mechanical and materials area.

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