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Patents for artificial intelligence and blockchain are among the hot topics in IP these days. Here’s our Tilman Müller-Stoy and Bastian Best explaining what you need to know to successfully prosecute and litigate AI and blockchain patents in Europe.
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Patents on artificial intelligence and blockchain in Europe: hot topic.
On the one hand we have the patentability question, so “Can you get European patents on AI and Blockchain innovations?” And then there’s all sorts of enforcement questions, for example: “How can you detect a patent infringement?”
The patentability question:
There’s basically two things you need to know about the European patent system. First is, patent eligibility is basically a non-issue, unlike in the US. It’s a very low hurdle at the European Patent Office.
The challenging test is inventive step, because here only the technical part of the invention can establish non-obviousness. Now the thing with AI and Blockchain is that they can be used for virtually all sorts of things. And on the far ends of the spectrum, it is quite still easy to answer whether a given AI invention is considered technical or not. But it’s not so easy in the middle of the spectrum.
One simple example, if you consider a computer-implemented simulation method which does not operate on a real machine, but on an abstraction, on a mathematic model of that machine. The question is, should that be patentable or not.
And interestingly, there is a case currently pending before the Enlarged Board of Appeal, which is the highest judicial entity in the European patent system. And here the board will have to decide whether such simulation methods are to be regarded as patentable or not.
So, lots of movement in the case law as technology involves.
Another important issue on the enforcement side is the detectability of infringement.
There are, on a global scale, several tools available, most easy in the United States you got Pre-Trial Discovery, so there it shouldn’t really be a problem.
But also in Europe you would have mechanisms in order to identify infringements, too, for example, get access to the source code of the presumed infringer.
In Germany, inspection proceedings are available where you would have to show a sufficient likelihood of infringement in order to get access.
But also in Italy, Descrizione, or in France, Saisie-contrefaçon, or in the UK, Initial Disclosure, you would have mechanisms available to deal with that issue.
Another issue that comes up in our patent litigation cases frequently is the cross-border aspect.
So, if we consider a Blockchain patent, now Blockchain is inherently a distributed system, which might involve possibly hundreds or thousands of computers scattered around the world.
So, what actually happens if part of the patented invention is carried out abroad?
There is already some guidance on these issues.
In particular, in Germany we have a decision which basically says, if the technical effect of the patented teaching is directly and intentionally occurring in Germany, then that’s good enough to make a case for patent infringement.
So, the case law might develop a little bit here, but solutions should and will be available.
If you want to know more about these topics, we have an article on our website where we deal in more detail about the question of patentability on simulation methods, which is one of the hottest topics right now at the European Patent Office:
And if you want to know more, if you have any questions, just let us know.