The compounds that are discovered are an obvious target for patent protection for any company using AI in drug discovery. In this respect, drugs are a good opportunity to get patent protection on products discovered via AI. BenevolentAI, for example, have several patent applications in their name which all appear to be directed solely towards the products of their AI (i.e., compounds and uses thereof).
Companies may also decide to use patents to protect their AI. Atomwise and Recursion Pharmaceuticals appear to have patent applications directed towards their AI, whereas BenevolentAI does not appear to have any pending applications which disclose their AI.
Patents, by their nature, require public disclosure of a company’s methods or product. There is a possibility that by disclosing an AI for drug discovery would make any drugs resulting from that AI obvious, if for example it could be demonstrated that the AI would always arrive at the same result when given a problem and that a skilled person would inevitably arrive at that solution if he/she were given the problem and the AI. Anyone seeking to protect their AI should therefore take care that their disclosure of the AI does not render any drugs resulting from the AI obvious.
When considering patent protection, it is also important to remember that, in Europe, an invention must be directed towards a non-obvious technical solution of a technical problem. In this respect, all features which contribute to the technical character of the invention are taken into account. The EPO’s guidance is that AI-related innovations should be described and claimed as being developed for a specific implementation. However, a pending Atomwise EP application has been deemed to relate to non-technical matter because the claim is “not sufficiently limited to ensure that [the] technical purpose is actually served by the distinguishing features over the whole claim scope”. Applicants should therefore ensure the technical purpose is plausibly served across the whole scope of the claimed subject matter.
AI users may also consider using trade secrets to protect their AI. Trade secrets do not prevent third parties from independently arriving at the same solution, however, and anyone using trade secrets should also be aware of the dangers of third parties reverse-engineering their AI.
In summary, patent protection is available for AI technologies in the field of drug discovery and companies operating in this area should seek expert guidance at the earliest opportunity to discuss their options and any difficulties they may encounter.