5 key IP considerations for AI startups

Early-stage companies are innovating new artificial intelligence-based solutions, but they often face questions as to whether such technology can be protected and the best strategy for doing so.

Without an understanding of how to protect their R&D investment and claim technology as proprietary, startup companies are leaving a tool behind, possibly forfeiting market share and investments as a result.

The considerations below will be useful for companies trying to understand the opportunities to protect their innovation.

Artificial intelligence innovations are patentable

AI software is patentable, and applicants are seeking protection at a remarkable rate. In 2000, the U.S. Patent and Trademark Office (USPTO) had received about 10,000 applications directed to artificial intelligence, and by 2020, that number reached about 80,000 applications, of which 77% were approved.

Despite some challenges involving types of software and business methods that are ineligible for patent protection, we have been obtaining patent protection for AI innovations for many years. In fact, the USPTO even issued guidance for eligibility that gave an example of training a neural network. Patentable innovations may relate to an improvement in a particular model, an implementation of a model, improved training or other aspects.

Disclosure of technology, whether planned at a conference or a partner meeting, or unplanned and incidental, may cause a forfeiture of patent rights.

The USPTO characterizes AI innovation as including the following component technologies: planning/control, knowledge processing, speech, AI hardware, evolutionary computation, natural language processing, machine learning and vision.

If a company has an innovative feature that distinguishes itself from competitors, then patent protection may be a worthwhile tool to gain a competitive advantage, perhaps even in conjunction with copyright and trade secret protection.

Direct patent coverage to detectable features

Patents can be useful for excluding others from making, using, selling, or selling an infringing product or method. When asserting that another company infringes a patent, we look to the claims, which define the property right. If another company practices each and every element of a claim, then that company is infringing.