Can I Patent AI? Safeguarding Your AI Innovation!

Can I Patent AI? Safeguarding Your AI Innovation!

Generative artificial intelligence (“AI”) is currently all the rage.  With the proliferation of ChatGPT, Copilot, and whatever Google is doing (we kid), there isn’t a single organization that isn’t considering how to integrate generative AI to get in on the innovation wave.  There are also so many intellectual property considerations at play – but that’s not why we’re here.   

A common question that repeatedly comes up is “Can I patent AI?”  Though the answer requires understanding the technical innovation to really determine patentability, the short answer is yes, you could potentially protect a specific improvement that involves AI.  The recent rush in the industry is supported by thousands of patent applications iterating on generative AI, with ChatGPT being the tip of the iceberg of future innovations. The notice by the Patent and Trademark Office (UPSTO), titled the 2024 Guidance Update on Patent Subject Matter Eligibility, highlights these advancements, making it clear that the patent landscape is evolving to accommodate these cutting-edge technologies.

In this post, we'll delve into the world of AI patenting, exploring strategies and best practices that can fortify your intellectual property rights. From understanding AI patents to navigating the patenting process, and ultimately defending your innovations against potential infringement, we'll equip you with the knowledge and tools to embark on this critical journey with confidence. 

Safeguarding your AI innovation is not just about protecting your hard work; it's about ensuring that your vision and contributions to the field of AI endure for generations to come. With the right legal strategies and unwavering determination, you can create an impenetrable barrier around your inventions, deterring those who seek to undermine your achievements and preserving the fruits of your labor for years to come. 

Patenting your AI innovation is a crucial step in safeguarding your innovation. A well-crafted patent not only grants it exclusive rights but also serves as a form, ensuring that you maintain control over your creations and their commercial potential.

Yet, the path to obtaining an AI patent is far from straightforward. The complex nature of algorithms, machine learning models, and neural networks presents unique challenges in the patenting process.  Traditional patent frameworks, designed for more tangible inventions, often struggle to accommodate the intricacies of AI innovations.  This is where specialized legal expertise becomes invaluable, guiding you through the intricate maze of patent law and maximizing your chances of securing robust protection for your groundbreaking work

What Patent Protects AI? 

A patent application filed for AI is a form of intellectual property protection that grants exclusive rights over your AI-related invention or process (we’ll shorthand this by calling these “AI patents”). AI patents prevent others from replicating, using, or profiting from your technology without permission. They can cover innovations like machine learning algorithms, neural network architectures, AI systems and applications, data processing techniques, and AI hardware. 

AI patents are crucial for exclusivity, legal recourse against infringement, competitive advantage, licensing opportunities, and attracting investment. Understanding patenting intricacies and developing a strategic approach is essential. 

  1. What is an AI patent?

An AI patent is a form of intellectual property protection that grants exclusive rights to an inventor over their artificial intelligence-related invention or process to stop others from using whatever has been protected. It essentially serves as a legal barrier, preventing others from replicating, using, or profiting from your AI technology without your explicit permission.  Because patent protection is so powerful, this is a time-limited grant.  An AI patent could be based on how something works or functions.

AI patents could cover a wide range of innovations, including: 

1. Machine learning algorithms and models 

2. Neural network architectures and training methodologies 

3. Artificial intelligence systems and applications 

4. Data processing techniques for AI systems 

5. Hardware specifically designed for AI computations

Its important to note that AI patents do not protect the underlying ideas or concepts behind the innovation.  Instead, patents protect specific implementations and practical applications of those ideas.  For example, at this point, you would not be able to protect “AI” generally, or the concept of AI.  Instead, you might be able to improve an innovation that moves the field forward – maybe something that makes results clearer, or the backend does not take as much computational intensity, or how to offload computations in a way unique to the generative AI process.  Of course, AI itself is much broader than the most recent trend brought about by ChatGPT, so the possibilities are pretty endless, much like AI itself

Getting a patent on this may have tremendous potential if you are able to leverage the innovation in a way that could be helpful to advancing the technology, could be used in other industries, or helps differentiate your technology from the crowd. 

How Do I Protect AI? 

Protecting AI is similar to protecting software.   

AI in and of itself may be considered an abstract concept that is not fall under an immediately patentable category within the United States Patent and Trademark Office (“USPTO”).  Instead, when filing for patent protection, the USPTO has specific requirements for what rises to the level of patent protection.  Like software, the USPTO would like to see that an AI innovation provides a technological solution to a technological problem and improves the functionality of a computer or other technology.  

Said another way, a starting point might be to ask, “what problem were you trying to solve when you created this AI solution?”  If you create your own solution because there is nothing “off-the-shelf” readily available to you, it might be worth exploring patent protection to see if the innovation rises to the level of patentability.  Working with a patent attorney as early as possible in the process to see whether you “have something” is completely worth the effort instead of wondering “what if?”.  There are also timing concerns to keep in mind if you are considering patent protection that may prevent you from filing if there’s been a significant amount of time that has passed after a public disclosure.  

  1. Why are AI patents crucial?

In the field of AI, where new breakthroughs and advancements occur at a breakneck pace, securing patent protection may be paramount for several reasons: 

  1. Exclusivity: An AI patent grants you the exclusive right to commercially exploit your invention, preventing others from unlawfully profiting from your hard work and ingenuity.
  2. Legal Recourse: If your patented AI technology is infringed upon, you can pursue legal action against the infringing party, potentially recovering damages and halting the infringement.
  3. Competitive Advantage: A strong patent portfolio can provide a significant competitive edge, deterring competitors from entering your market space and enabling you to maintain a technological lead.
  4. Licensing Opportunities: AI patents can generate substantial revenue streams through licensing agreements, allowing you to capitalize on your innovation while retaining ownership.
  5. Attracting Investment: Investors and venture capitalists often view a robust patent portfolio as a valuable asset, increasing the appeal and perceived worth of your AI venture.

    Real Life AI Patents

1. Adobe’s Training of neural network based natural language processing models using dense knowledge distillation

Status: Patented. 


Adobe's AI innovation patent references OpenAI GPT (generative pre-training), BERT (Bidirectional Encoder Representations from Transformers), and ELMo (Embeddings from Language Models), referring to them as providing state-of-the-art natural language processing (NLP) results.  Adobe then references that these models require increased computation cycles and storage space.  Their solution, proposed in the patent application, is to create something that could be used in resource-limited systems, such as mobile devices.  Their patent specifically considers model compression methods for these more resource-limited systems.   


2.OpenAI’s Systems and methods for hierarchical text-conditional image generation

Status: Patented.

In this patent, OpenAI, the company behind ChatGPT, is focusing on improving how images are generated according to corresponding text queries.  This granted patent attempts to provide solutions to a few image generation systems, including creating higher quality, higher resolution images with meaningful and helpful information.


3.Element AI’s Method and system for meaningful counterfactual explanations

Status: Patented.

Element AI’s granted patent focuses the face authentication feature of unlocking a device.  They compare the current state of the art to their solution, which tries to provide more useful information to a user or to a computer system as to why the software is not validating their authentication. 

Element AI's system is designed to give clear explanations about how image classifiers work, making artificial intelligence easier to trust and understand.


Preparing for the Patenting Process 

To fully harness the benefits of AI patents, it's essential to understand the patenting process and develop a strategic approach tailored to your specific innovation. This includes: 

1. Conducting thorough prior art searches.

2. Navigating the nuances of patentability requirements for AI inventions. 

3. Clearly defining the scope of your invention

4. Depending on the type of patent application, crafting precise and defensible patent claims

5. Adhering to ongoing maintenance or renewal obligations

By grasping the fundamentals of AI patents and their significance, you’ll be better equipped to make informed decisions that protect your intellectual property and secure the future of your groundbreaking AI innovations.  


1. Filing the Application

The initial step in securing an AI patent involves carefully selecting the most appropriate patent type for your innovation, whether its a utility patent for new processes or a design patent for unique visual aspects.  

It's crucial to ensure your AI innovation meets the stringent patentability criteria of novelty, non-obviousness, and usefulness.  

Drafting a robust patent application is paramount, which requires precise claims that define the scope of your invention, detailed descriptions that have enough detail to enable others to reproduce your work, clear drawings or diagrams that illustrate key components, and, where applicable, comprehensive references to prior art that demonstrate your innovation's uniqueness.  

Engaging experienced patent attorneys who specialize in AI can be invaluable at this stage, as they can navigate the nuances of AI patenting and build a compelling case for your invention's patentability.

2. Patent Examination Process

Once your application is filed, prepare for a thorough and often lengthy review process conducted by patent examiners. This phase requires diligence and patience. You'll need to respond promptly and comprehensively to office actions, which may include rejections or objections to various aspects of your application. Be prepared to clarify technical details, amend claims to overcome prior art citations, or argue persuasively for the merits of your invention.  

It's not uncommon for AI patents to face multiple rounds of examination due to the complex and rapidly evolving nature of the field. Consider the potential need for spin-off applications to broaden your protection or address aspects of your invention that weren’t fully captured in the original application. Throughout this process, maintaining open communication with your patent attorney and being flexible in your approach can significantly improve your chances of success

International Considerations 

In today's global marketplace, evaluating the need for international patent protection is crucial, especially for AI innovations that often have worldwide applications. You can familiarize yourself with the Patent Cooperation Treaty (PCT), which provides a streamlined international filing procedure for seeking patent protection in its many member countries.  This allows someone to file a “placeholder” international patent application while you decide whether international protection is something for you.  This starts a new timeline to decide whether you’d like to directly file in the member countries that are part of this mechanism.  

Also, consider regional patent systems like the European Patent Office, which can offer protection across multiple countries with a single application.   

Strategically planning your filing timelines is essential to maximize global coverage while managing costs effectively.  

Keep in mind that patent laws and practices regarding AI (including whether AI is patentable in that country) can vary significantly between countries, so working with attorneys who have international expertise can be particularly beneficial in navigating these complex waters and ensuring your innovation is adequately protected in key markets. 

Leveraging, Maintaining, and Enforcing

Securing a patent marks the beginning of an ongoing process of opportunity, vigilance, and strategic management.  Regularly monitor the market for potential infringements of your patent, staying ahead of competitors who may be encroaching on your protected technology.  Leverage legal expertise to enforce your rights, when necessary, whether through licensing agreements, cease and desist letters, or litigation as a last resort. Experienced patent attorneys can help you develop long-term strategies to maximize the value and protection of your AI patent portfolio. This may include continual innovation to stay ahead of the curve, strategic filing of continuation or divisional applications to broaden your protection, and careful management of maintenance fees to keep your patents in force. Remember that the AI landscape is rapidly evolving, so maintaining a proactive approach to your patent strategy is essential to safeguard your competitive edge and the long-term value of your innovations.  

By understanding the nuances of AI patents, meticulously preparing your application, and strategically navigating the patenting process, you can create a strong legal protection for your innovation. This protection not only prevents infringement and exploitation but also allows for future growth, licensing opportunities, and making a significant mark in the world.

Remember, the complexities of AI patent law demand specialized expertise. Partnering with experienced AI patent attorneys can prove invaluable in navigating the intricate legal landscape, maximizing the protection of your invention, and developing a comprehensive patent strategy that extends far beyond the initial filing.
Embrace the challenge (and excitement!) of patenting your AI innovation with confidence, knowing that the path ahead, though complex, is a testament to the groundbreaking nature of your work. Secure your legacy, protect your intellectual property, and unlock the full potential of your AI creation by taking the first step today

Still have questions? Schedule a consultation discovery call with us to discuss whether you can protect your groundbreaking AI innovation, ensuring that your vision and contributions to the field endure for generations to come.