Trilateral Seminar of the French, German and Polish Groups of AIPPI What is AI? What is an AI creation? How does the EPO deal with AI inventions? Yannis Skulikaris Director Operations, Information & Communications Technology Paris, 4-5 April 2019

some EPO figures, based on core AI classification data (G06N)

content What is Artificial Intelligence? What kind of AI applications arrive at the EPO? Does the EPO patent AI applications? If so, under which conditions? which issues arise/are expected to arise regarding patents and AI?

What is Artificial Intelligence? possible definitions A set of technologies that enable machine intelligence to simulate or augment elements of human intelligence A confluence of three breakthroughs, big data, massive computing power and sophisticated algorithms applied mathematics The attempt to solve with computers such problems, that if solved by humans, would require intelligence The transition from “Sense and act” to “sense, think and act” The transition from “computational support” in the 20th century, to “cognitive support” in the 21st

What kind of AI applications arrive at the EPO? AI technical application fields image processing speech processing automatic translation fault detection - predictive maintenance medical analysis … self-driving cars

does the EPO patent AI applications? If so, under which conditions? Article 52 EPC, Patentable inventions (1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.  (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods;  (b) aesthetic creations;  (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;  (d) presentations of information.  (3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

does the EPO patent AI applications. If so, under which conditions does the EPO patent AI applications? If so, under which conditions? (cont.) the EPC requirement of technical character Article 52 (computer programs as such excluded from patentability), Rules 42, 43 EPC The description must specify the technical field of the invention and disclose the invention so that the technical problem and its solution can be understood (Rule 42 EPC) Subject matter for which protection is sought must be defined in terms of technical features of the invention (Rule 43 EPC) Case law of EPO Boards of Appeal T0931/95 (PBS), T1173/97 (IBM), T641/00 (COMVIK), T258/03 (HITACHI) the invention has to offer a technical solution (i.e. by means of technical features) to a technical problem (i.e. to a problem which is not commercial, financial, administrative, mathematical, cognitive and the like)

which issues arise / are expected to arise regarding patents and AI? unpredictable functionality (can a skilled person put the invention to practice and reproduce the functionality?) inventorship (can a program make an invention?) ethical issues (who assumes liability for an AI application?)

Questions, Comments, Suggestions Yannis Skulikaris yskulikaris@epo.org +31 70 340 3185 +31 6 41 24 77 16