13/06/2023
Artificial Intelligence (AI) chatbots that use foundational large language models (LLMs), supervised and reinforcement learning techniques are currently of high interest, but what about the patentability of such chatbots and systems?
Even before the current hype and therefore perhaps not particularly noticed, there was a very interesting and instructive decision by the German Federal Patent Court “Bundespatentgericht”. In the decision 17 W (pat) 46/16, which dealt with a digital conversation generation method, the court denied the patentability of such text generating natural language methods which generate interactive dialogue steps and scripts on the grounds of a lack of technical character. The German Federal Patent Court stated that the subject matter of mimicking a human conversation was excluded from patent protection pursuant to Sec. 1 (3) No. 3 in conjunction with Sec. 1 (4) Patent Act.
Interestingly, in the appeal proceedings of the examination procedure, the applicant had not invoked the nowadays widespread use of such chatbot systems in the sense that program code is generated or at least reviewed and improved with the help of the chatbot systems. However, the patent application did not describe any of these now widespread applications of performance-enhancing program code generation using chatbot systems.
Such a reference to these code-improving and performance-enhancing application scenarios would certainly have strengthened the argument for technical character. Generating technical program code instead of human-machine conversations would probably have been more likely considered as the solution of a technical problem by technical means. Also, according to European practice, generating improved program code might be considered technical, since for instance in G 1/19 reasons 115, it was confirmed that a computer software – including the underlying algorithm – may contribute to the technical character of a computer-implemented invention, in that the program code is adapted to the internal functioning of the computer or computer system/network. Also, in T 2147/16 of 7.9.2021, the Board stated that when an improved algorithm is implemented in practice and the load is reduced, the algorithm has a further technical effect and provides an improvement over the prior art.
In summary, when drafting patent applications for AI chatbots and generative artificial intelligence, technical embodiments such as generating, reviewing or debugging program code in various programming languages should be included in the claims and description, since such computer-implemented applications are sufficient to confer a technical character on the invention involved.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
