Infringing AI Patents: Who’s liable, a UK perspective

This article was first published by Law360 and co-authored by Alexander Korenberg, Kilburn & Strode

Introduction

The past year has seen a steep uptake in private investment and impressive technical achievements in AI and machine learning, according to the 2022 AI Index. [1] At the same time patent filings world-wide have grown apace, growing by 75% in 2021, a 30-fold increase compared to 2015. While patenting activity is increasing, thus far there is little guidance from the courts as to how claims to AI technology will be considered. With the ever-increasing commercial activity in this field, it is only a question of time until we will see more AI-related patent litigation activity. Potential plaintiffs and defendants, and their advisors involved in filing and litigating AI patents, need to be prepared.

What form of claims are commonly being granted in Europe?

Under the European Patent Office’s criteria, AI technology can be patented based either on its application for a technical purpose or its technical implementation, i.e. an implementation designed with the internal workings of a computer in mind. While other jurisdictions outside of the EU,…