How the EPO and USPTO Guidance Will Help Shape the Examination of Artificial Intelligence Inventions

It is safe to say that Artificial intelligence (AI) and Machine Learning (ML) are hot topics and, as with any rapidly growing technological area on the industry side, there is also a rapidly growing number of patent applications being filed.In view of this, the European Patent Office (EPO) issued new guidance for examination for AI and ML patent applications in November 2018. Meanwhile, in January 2019, the U.S. Patent and Trademark Office (USPTO) also issued revised guidance directed to what constitutes patent eligible subject matter under 35 U.S.C. §101. Although the USPTO’s revised guidance is more generally directed to software applications, at least one of the accompanying hypothetical examples (Example 39) is directed to the AI and ML space. Therefore, while there may be lingering concerns that AI and ML inventions will face extra scrutiny toward patentability due to their software-centric nature, the extra attention that the EPO and USPTO are paying toward AI and ML will likely help swing the pendulum of patentable subject matter toward a place that is in harmony with the current state of technology. The below analysis reviews the recent developments by the EPO and the USPTO to provide specific guidance on the topic of AI and ML.

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