These types of technologies are potentially patentable at the European Patent Office (EPO). However, it is necessary to navigate the “excluded subject matter” rules. Mathematical methods and computer programs – and nothing more – are not patentable, and neither are diagnostic methods conducted on a human or animal body.
Regarding the first exclusion, the EPO takes a two-step approach. First, it must be determined if the subject matter in question is directed to technical subject matter or not. This first hurdle is straightforward to overcome where the patent claim includes apparatus features such as a computer server, or where a method claim is directed to a “computer-implemented method”. Second, the invention must be directed towards a non-obvious technical solution of a technical problem. In this respect, only features which contribute to the technical character of the invention are taken into account, so that the second hurdle is difficult to pass where many of the features of the patent claim relate to features which are considered to be non-technical, such as administrative features, or business method features.
The EPO’s guidance is that AI-related innovations should be described and claimed as being developed for a specific implementation (technical purpose), as this will assist in overcoming these two hurdles. It is generally more straightforward to avoid the bar on patentability of diagnostic methods by ensuring that at least one technical step of the method is carried out in the absence of a human or animal body (for example, on a computer).
DeepMind Technologies is currently seeking patent protection for a system developed as part of its high profile collaboration with Moorfields Eye Hospital, where software was trained to diagnose a range of ocular conditions from digitised retinal scans. The AI system has been shown to recommend the correct referral decision for over 50 eye diseases with 94% accuracy, matching the performance of top medical experts. The EPO has issued their first opinion on the claims of DeepMind’s patent application, and appears to consider that the subject matter is eligible for patent protection (there are no objections regarding excluded subject matter). The objections that have been raised by the EPO relate to traditional lack of inventive step in view of technology known at the filing date of the application. It should be noted that where AI technology involves processing of medical images, generally speaking, there are strong arguments the subject matter is eligible for patent protection (i.e. not excluded) because of existing EPO case law concerning image processing.
Another AI company, Cognetivity, has already successfully achieved grant of a patent from the European Patent Office to protect their system for early detection of dementia. Using AI, Cognetivity has developed a simple screen-based test that it believes could transform diagnosis of the disease. Cognetivity’s test involves subjects being shown approximately 100 images in five minutes, with each image flashed by for just 150 milliseconds. Subjects must then indicate immediately if they have seen an animal or not. The responses are then compared with historical data and the AI system compares the results with those from healthy people and people with the condition.