The workshop on Intellectual Property Protection for Artificial Intelligence and Robotics was held in the DPMA forum in Munich on 15 April 2019 in cooperation of the law firm Page, White & Farrer, the Robotics and Artificial Intelligence Law Society (RAILS) and the German Patent and Trademark Office (GPTO).
Recent advances in the field of Artificial Intelligence (AI) and robotics allow for the creation of new products and services as well as for advancements of existing technologies and consequentially new potential applications. From an economic perspective, the question whether and to which extent intellectual property rights apply to these is vital. Therefore, the workshop addressed one of the most challenging (legal) questions arising for various actors on relevant markets: How can respective products or services and especially their parts be protected?
After a short welcome and an introduction by Prof. Dr. Heinze, one of the founding members of RAILS, the speakers Olaf Ungerer, Virgina Driver and Tom Woodhouse, who are all partners of the law firm Page, White & Farrer, introduced the audience to general and specific problems of intellectual property protection in the context of AI and robotics.
The presentations started with an overview over the relevance of AI in various economic and technological fields followed by an overview over major players in the patent markets and patent applications in relevant nations. Although the relevant intellectual property rights were addressed in general, the focus was set on patent law due to its relatively extended scope of protection. With respect to the core element of AI and smart robotics – software – an emphasis was placed on the protection on computer programs and software-based technologies. Mr. Ungerer identified the requirement of a technical character of an invention as the biggest hurdle to overcome. Not only is the protection of software and software-based technologies (still) considered as one of the most problematic issues in the field of patent law – for academics as well as for practitioners – but the relevant technologies or at least the applications deriving from those are also relatively new. Therefore, specific jurisprudence is rare.
With these facts in mind, the speakers summarized the German jurisprudence on software patents and the practice of the GPTO in contrast to the practice of the European Patent Office. Mr. Ungerer concluded that the matter was intricate and even minute changes of a product or in patent claims could make a difference regarding the outcome of an application. Mrs. Virginia Driver and Mr. Tom Woodhouse further explored the practical challenges of patent protection for AI-based products and services. They demonstrated which other difficulties have to be overcome in the process of obtaining a patent with reference to some practical examples. These concerned, among others, determining the right balance between discretion and publication of findings of scientific interest, as prior publication can prevent an otherwise patentable invention from being deemed novel by patent authorities. Other issues presented and discussed with the audience centered especially on the requirement of an inventive step necessary for AI-based inventions. Finally, yet importantly, the speakers introduced the audience to measures in order to enhance the company value with patent strategies meeting the individual requirements of (potential) right holders.