Not Every AI-Driven Product is Sacred Enough for a Patent

I noticed something peculiar while watching an NBA playoff game with my son recently. Nearly every advertisement extolled the virtues of the latest AI-driven product, or a sports-betting app. It occurred to me that anyone watching sports these days—at least those who aren’t sucked in by the untold riches of a parlay wager—must think that all AI-related products are valuable and worth patenting.

I assure you, they are not.

While your legal department should make all efforts to protect its business and the innovations that set it apart in the market, AI-related inventions require special considerations to effectively leverage these valuable assets.

1. Avoid “Black-Box” AI Inventions

As AI becomes more integrated with other technologies, it is crucial to recognize its role in each invention disclosure you review. While enlisting the help of AI technologies may be essential to the success of a product, inventions that only claim known AI techniques to new or different data environments are not patentable, according to the U.S. Patent & Trademark Office.

To avoid this issue, it is important to consider exactly how the AI-specific parts of an invention disclosure contribute to the invention, not merely that the invention includes AI-driven aspects. If the AI is simply leveraging known platforms (e.g., OpenAI, Azure, AWS) to your data, the AI aspect of the invention is probably not an adequate basis for patentability. The invention must either improve the AI model itself or show how its application solves a technical problem in another field (e.g., cybersecurity, medical imaging).

2. Understand Complex AI Technologies

AI technologies are inherently complex, involving intricate algorithms, machine learning models, and vast datasets. This complexity poses significant challenges in understanding and accurately describing the inventions in patent applications. Close cooperation with your patent counsel and other technical experts is essential to ensure that the patent claims are comprehensive and precise, capturing the full scope of the innovation.

3. Study the AI Patent Landscape

The number of patent filings for AI-related inventions continues to grow. What is cutting-edge today may become obsolete tomorrow. This rapid evolution makes it challenging to draft patent applications that remain relevant and valuable over time. Understanding your business goals with strategic foresight and continuous monitoring of patents and patent filings in related businesses may help avoid infringement and identify opportunities for monetization.

4. Value Your AI-Related IP Carefully

Determining the value of AI innovations is another significant challenge. Traditional patent valuation methods may not fully capture the potential of AI technologies, which can have broad and transformative impacts across your business. Valuation models must be tailored to the unique attributes of AI, such as its scalability, adaptability, and potential for integration with other technologies and data sets. Accurate valuation is crucial for negotiating licensing deals and attracting potential buyers or investors.

6. Consider Ethical and Regulatory AI Limitations

AI technologies often raise ethical and regulatory concerns, including potential bias, privacy, and accountability violations. Potential licensees or buyers may be wary of your AI products’ legal and reputational risks. You can proactively address these concerns by ensuring that your AI technologies comply with relevant regulations and ethical standards for each jurisdiction in which a patent is sought. Timely and thorough audits and implementing robust governance frameworks are essential for successful AI deployment.

7. Collaborate Among Cross-Disciplinary Experts

Successfully monetizing AI patents requires collaboration between legal, technical, and business teams. Legal departments must foster strong relationships with AI researchers, engineers, and business strategists to develop a comprehensive understanding of the technology and its market potential. A cross-disciplinary approach to identify monetization opportunities, draft robust patent applications, and negotiate favorable deals will maximize your return on AI innovations.

Conclusion

Monetizing patents that incorporate AI technologies presents a unique set of challenges. Legal teams should adopt a multifaceted and proactive approach to navigate AI’s technical, legal, and regulatory complexities. By leveraging cross-disciplinary expertise and staying abreast of technological and legal developments, your team can unlock the full potential of your AI innovations and make your next parlay in AI innovation a sure bet.