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US implications of new European software patent guidelines

As of the beginning of November, regulators in Europe have new guidelines for how they assess and grant requests for patents. These updates by the European Patent Office have come to be expected annually. Analysts report that the greatest changes this time around deal with computer-implemented inventions (CII) – effectively, computer software.

According to more than one analysis, including one in The National Law Review, indications are that CII patent applications that rely significantly on claims related to artificial intelligence (AI) and machine learning (ML) "may be treated as largely unpatentable." At the same time, some technology industry observers express the view that the changes could also influence how the U.S. Patent and Trademark Office does its work, the upshot being new challenges in managing computer-related intellectual property issues.

The EPO standard

To understand why this is drawing attention, it helps to understand the thinking behind EPO's approach to CII. In the EPO view, framed by the European Patent Convention, software is essentially just a package made up of mathematical abstractions that, when properly put together, allow a programmable device to perform a task or function.

Under EPO standards, patent claims based on mathematical concepts generally do not warrant approval. However, the guidelines allow that if the AI or ML application under consideration articulates that it makes or enhances a "technical contribution" or has a "technical character," patentability may be possible.

Many analysts suggest this nuance could present patenting difficulties for AI and ML inventions in the European Union, and perhaps in the U.S. These challenges can be overcome, but optimal intellectual property protection depends on identifying the correct legal strategy and best forum for a patent application's consideration.

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