Graham McGlashan: Patent applications for AI-related inventions is key

From smart meters to smartphones, technology continues to have a positive impact on our everyday lives with advancements being felt in almost every area.
Graham McGlashan is a Chartered (UK) and European Patent Attorney for Marks & Clerk LLP.Graham McGlashan is a Chartered (UK) and European Patent Attorney for Marks & Clerk LLP.
Graham McGlashan is a Chartered (UK) and European Patent Attorney for Marks & Clerk LLP.

Welcome to the ‘fourth industrial revolution’, or industry 4.0 as many have labelled it, which is now in full swing across the globe, heralding a new era of technological development characterised by digitalisation and the storage and management of big data. Fundamentally, it is expected to disrupt the global economy.

Industry 4.0 refers to the impact that increasingly sophisticated software, and in particular artificial intelligence (AI) software, will have on that economy. From energy to automotive to medtech and biotech, there are few areas which will be immune to AI-based disruption and the race is most certainly on globally to deliver the technologies that will define the next industrial revolution.

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Examples include Internet of Everything (IoE) and machine to machine (M2M) technologies underpinning factory environments, allowing machines to become increasingly automated and self-regulating, in turn realising smoother processes and freeing up workers to focus on other tasks.

Then there are self-driving vehicles which offer industry enhanced flexibility, higher throughput rates, and a faster return on investment than autonomous guided vehicles by efficiently navigating through plants.

However, as with any new technology, legal and regulatory systems need to keep up with the emergence of AI and there are particular challenges around securing intellectual property (IP) on it. These are of significant concern to companies and innovators in markets including China, which has fully embraced Industry 4.0 following rapid industrialisation and urbanisation, as well as other cutting edge nations looking to secure effective protection.

What will be the impact on business of this revolution? How will IP strategies be affected by the new interconnected environment associated with Industry 4.0, complete with IoE and the accompanying sensor hardware, wireless communications, and cloud computing advances?

It’s clear that there are significant opportunities and identifying the best strategies for businesses in this space looking to secure IP on their hard won innovation is crucial. Central to success is understanding the challenges and solutions when it comes to patenting the software and algorithms that will underpin the development of AI and the technologies of industry 4.0.

Business leaders must also understand the changes taking place and then adapt their practices and strategies in order to mitigate any risks and capture and secure value in the form of IP.

Key to companies looking to develop European IP strategies for Industry 4.0 is understanding what makes AI-related inventions patentable in Europe. To be patentable, inventions in the field of AI and machine learning must involve “technical” innovation. It is important for companies and their patent attorneys to understand what the EPO (European Patent Office) considers to be “technical”, and to keep pace with legal developments in this rapidly developing area of technology.

Many stakeholders have called for clarity on the patentability of new technologies and the EPO has just issued updated and detailed guidance on the patenting of AI-related inventions. This provides more specific guidance on the examination of AI applications, under existing computer implemented inventions (CII) practice and case law.

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The guidance from the EPO is helping to clarify the approach to overcoming challenges in drafting patent applications for AI-related inventions – but seeking advice from a Patent Attorney who specialises in AI and software inventions can be critical to obtaining protection, helping businesses to stay competitive and drive fresh growth.

In the ever-changing Industry 4.0 environment, careful consideration needs to be given to much more than just IP protection for physical systems and connections – it must be applied to methodologies, processing algorithms, the configuration of virtual components, and much more.

The real challenge, nevertheless, will be to capitalise on the data that we are all producing daily, and hone innovations around that which can deliver the next industrial breakthroughs.

Intellectual property has a huge role to play in accelerating the economic viability of innovation and will be central to meeting those challenges.

Graham McGlashan is a Chartered (UK) and European Patent Attorney for Marks & Clerk LLP