AI-driven technology is potentially patentable provided there is a technical problem solved by a new and inventive technical solution. In Europe, an AI invention is generally treated as a computer-implemented invention and to be patentable it must solve a technical problem using a new and inventive technical solution.
In the context of patient compliance platforms, inventions will most likely exist around the process of receiving personal patient data, learning from the data using machine learning, and then using the trained machine learning system to predict the likelihood a patient will not take their medication at the correct time. Patent claims may be directed to ‘a computer-implemented method for providing a health assistant system’ or ‘a system for medication adherence management’.
A challenge with these types of inventions in Europe may relate to their ‘technical purpose’. How many different technical effects and technical purposes could these platforms be addressing? Trade secrets could be used as an alternative form of protection. However, there are significant drawbacks to using trade secret protection in the field of patient compliance technology due to the ethical reasons around making the technology transparent and explainable to patients and medical staff. In addition, NHSX states on its web site that “all source code is open by default so that anyone who wants to write code for the NHS can see what we need”. Where source code of an AI invention is open it is not possible to use trade secret protection.
Another consideration is how to assert AI algorithm patents for patient compliance inventions. Because patents are territorial, there is a need to identify the territory where technology is being exploited when thinking about asserting a patent. It can be difficult to identify where a patented AI process is occurring or where a result of a patented AI process is stored if the process can be implemented in the cloud or across a distributed computing system as the infringement is very often not in the same jurisdiction as the user who supplied the initial data. Having said that, there are often ways to overcome these issues and successfully assert patents. Regulatory requirements (such as from the GDPR) around the storage and handling of personalised patient data could mean more transparency in this area, which may make it easier to determine patent infringements if patient data, a patented process and resulting data must be contained within a single jurisdiction.
It may also be difficult to “detect infringement”; that is, identify if a patented AI process is being used by a competitor who deploys the technology as a black box cloud service. However, where AI software is part of a medical device, regulatory requirements can force competitors to disclose their technology. In addition, provisions of the GDPR may force competitors to disclose information about how AI algorithms work where those algorithms are used in automated decision making.
Brand protection of word marks, logos and App icons is extremely important for AI brand holders because of the reputational risk associated with AI. In the case of patient compliance, the reputational risk is extreme, because of the use of patient data in the AI algorithms used for patient compliance. AI brand holders need to consider strong brand protection and brand enforcement policies.
Software source code in AI patient compliance algorithms will benefit from copyright protection. Copyright protection arises automatically and generally lasts for many decades. However, it does not protect against competitors independently developing similar technology. In order to enforce copyright, it is generally necessary to obtain evidence of the source code being copied. This can be difficult where AI is provided as a cloud service or using executable code.
It is possible to gain protection for surface decoration i.e. the look of a smartphone App using UK Registered Design and/or Community Registered and Unregistered Designs. Generally speaking, design protection protects the appearance of a product, not the way the AI algorithm works.
UK and EU database rights may exist for the databases that store the information processed by the AI and where skill and effort has been spent collating the data in the database.