The year 2022 was a sensational year for artificial intelligence (AI). It began with rumors of Google’s AI chatbots becoming sentient, several diagnostic and scientific breakthroughs, and decision-making AIs. While scientists and technologists have been invested in AI progress since the early 1950s, 2022 got the larger public’s attention too. Now, AI has everyone’s attention – everyone’s waiting with bated breath to see where AI will take humankind from here on!  

If science, art, and technology are the engines of human progress, Intellectual Property (IP) is the protector ensuring that human creativity gets its due through IP rights. IP rights have encouraged creators, innovators and inventors motivated to solve real-world problems with the use of their imagination and creativity. This article will give a brief overview of AI-focused trends as observed by IP experts Himanshu Chawla and Praveer Singh between 2018 and 2022 to share the latest patent trends in the AI industry in 2023. 

IP Tools that can protect AI 

Patents: Patents are legal rights granted to inventors to exclude others from making, using, selling, and importing an invention for a certain period. In India, AI-related inventions are examined based on the subject matter exclusions defined in Section 3(k) of the Indian Patents Act, 1970, which proscribes patentability of “mathematical methods, business methods, computer programs per se, and algorithms”. AI-based inventions that are novel, non-obvious, and useful are patentable in India. 

Trade Secrets: Trade secrets are confidential information that gives the owner an economic advantage over competitors. It can include information such as business plans, customer lists, financial data, and technical data. In India, trade secrets are protected under the Indian Contract Act, 1872. As AI-based inventions often involve proprietary data in the form of data sets, trade secret protection can be used to prevent others from using or disclosing that data. 

Trademarks: Trademarks are signs that distinguish the goods or services of one trader from those of another. In India, trademarks are protected under the TradeMarks Act, 1999. Trademark registration would also help a company get the statutory right to the mark and would enable it to defend its brand against unauthorized use and other misappropriation including as a domain name. It is important to bear in mind that while AI per se cannot be protected through trademarks, the branding used for marketing the AI including any logos and slogans can be registered and protected as trademarks. For example, Companies like IBM and Amazon have registered trademarks for their AI-based products WATSON and Alexa, respectively, to protect their distinguishable identities and prevent third parties from imitating their business by offering similar services. 

Copyright: Copyright provides protection to original literary works, which includes computer programs and software. Hence, codes used in AI programs may be considered eligible for copyright protection under the Copyright Act, 1957.  

Protecting AI inventions via Patents  

Unlike, patent offices such as United States Patent & Trademark Office (USPTO), European Patent Office (EPO) and the Japanese Patent Office (JPO), the Indian Patent Office (IPO) has not issued separate guidelines to examine AI-related inventions. These inventions are examined as per the Computer-Related Inventions  Guidelines 2017 (CRI guidelines). That is, AI-related inventions are examined based on the subject matter exclusions defined in Section 3(k) of the Indian Patents Act, 1970. Section 3(k) proscribes patentability of “mathematical methods, business methods, computer programs per se, and algorithms”. The CRI guidelines have provided clarity in respect of what should and should not be allowed in respect of mathematical methods or business methods or computer programs per se or algorithms. 

One challenge generally faced by Patent filers in AI domain is related to the classification of the true and the first inventor i.e., who will be classified as the inventor of any product or process invented by AI? Would it be AI or the human being who has initially coded the AI machine? At present, most countries including India are in a legal quandary regarding this subject. For example, the EPO has clarified that in order to be an inventor, a person must be a ‘natural person’, and therefore an AI system cannot be designated as an inventor. Same stand was taken by the USPTO where the Supreme Court clarified that an ‘individual’ is understood as a ‘human’ and not a machine. However, on the contrary, Australian patent system initially took a favourable decision for considering AI machine as an inventor which was later turned down by their Federal Court. Surprisingly, South African patent office has granted DABUS as an inventor, which is the case gone in favour of considering AI machines as an inventor. Thus, it appears that most of the patent offices are not in favour of considering AI machines as an inventor. As more and more AI patent applications are filed, there will be more clarity on the issue of inventorship in the coming years. 

Patenting trend in AI 

Research indicates the following trends with respect to patent filings in India’s AI domain in the last five years.1:  

Chart 1: Overall patent filings vs AI-related patent filings in India 

Chart 2: Percentage of AI-related patent filings in comparison to overall patent filings 

Chart 3: AI-related patents filings by domestic applicants vs foreign applicants 

Chart 4: Domain-wise AI-related patent filings in India 

Overall, the spike in patent filing since 2020 (when the pandemic started) validates the famous saying “necessity is the mother of invention”. It is evident from the data represented in Chart-1 that the number of patent filings in India in the AI domain has shown continuous growth year on year. Nearly a 1.4 times surge can be seen in the last five years in the overall patent filings, whereas a whopping 6.1 times surge can be seen in filing AI-related patents in the same time frame. The same can be validated from chart 2 which indicates that patent filings in AI domain have grown from as low as 1.3% in 2017 to a staggering 6.1% in the year 2022. 

While Charts 1 and 2 clearly depict a surge in AI-related patent filings in India over the last 5 years, it is interesting to observe how the domestic applicants have fared in contributing to this surge. In 2017-2020, domestic applicants lagged behind the foreign applicants, however, the  situation has drastically changed from 2020. It is interesting to observe that in 2021 and 2022, AI-related patent filings for the domestic applicants were 1.2 times and 2.4 times that of foreign applicants respectively. 

Further, Chart 4 indicates the gradual and steady growth of patent applications in certain AI domains such as healthcare, image processing, transportation, edtech, IoT automation, and fintech. One of the possible reasons for the increase is the increased awareness and seriousness among the stakeholders.  

AI for Healthcare 

Whether it is the digitization of health records, diagnosis of digital images using deep learning, or robotic surgeries, the healthcare domain has shown remarkable progress over the years. In fact, over the past five years, there has been an increase of almost 7 times in AI-focused patent filings. The impact of COVID-19 has further pushed this growth in the healthcare sector in recent years - there was a 2.5 times increase in patent filings between 2020-22. One of the most significant reasons for this is that the pandemic pushed countries to collaborate, and share data and advancements to collectively solve major health crises. In addition demand for remote-based and/or more accurate medical and diagnostic solutions, increased funding for COVID-19-related technologies, disruptions in the supply chain, changes in consumer demand, and most importantly increased investments in the sector, may have played a significant role in encouraging more AI-focused innovations, thus increased patent filings. 

AI for Image Processing  

Surprisingly, the image processing domain comes second in terms of patent filings. While patent filing trends for image processing may have seen a momentary dip in 2019, it quadrupled in 2020; further between 2019 and 2021, patent filing activities increased by almost 7.4 times. While the image processing domain has a wide area of applicability, this domain in itself has shown notable progress in analysing and processing images and videos. From applications related to face recognition to authenticity and detecting objects and patterns, AI has improved computer vision technology which has enhanced its abilities to support the country’s security. Further, since image processing  deals with sensitive data such as facial images, fingerprints, etc., it is important that the AI techniques implementing image processing must handle the sensitive data with responsibility and avoid any possible breach of the data.  

AI for Transportation  

Increasing global focus on sustainable transport solutions, reducing emissions, electric vehicles, intelligent transportation systems, and automation is driving innovation in the transportation sector. India is also catching up with advanced countries with the help of private players as well as government initiatives like “Industrial Revolution 4.0” and “Go Green Initiative”. Innovations in transport also increasingly focus on developing more efficient systems to support AI-powered self-driving cars. All these factors have led to 6.7 times increase in patent filings in the five years between 2018-21. 

AI for EdTech 

The prolonged closure of schools and universities has led to a surge in demand for online education platforms and tools, creating an environment where edtech companies have the potential to thrive.  The lockdowns and social distancing measures have led to the adoption of video conferencing, virtual classrooms, and online testing and evaluation platforms among other digital tools. The patent filing data also reflects this trend, showing 4 times increase in patent filings for AI-based edtech inventions and innovations between 2018 and 2021, and a 1.2 times increase between 2020 and 2021. 

As the demand for e-learning continues to grow, we can expect to see more investments in this sector and more innovation in the field of edtech. 

AI for IoT-based automation  

“Home automation” is the leading field witnessing IoT-based automation and covers inventions related to remote control of home appliances, smart kitchens, smart washrooms, IoT-powered automated home security systems, disable-friendly homes, etc. Another sector under IoT automation that has seen a significant increase is the farming and agricultural sector. These inventions while aiding farmers to multiply their growth also enable sustainability thus preventing environmental damage. They target areas such as soil health detection, avoiding access use of water in fields, advising farmers on basis of weather analysis, assessing the market conditions for any crop etc. IoT has been leveraged greatly in the field of warehouses and cold storage. This includes auto-detection of temperature conditions in storehouses, detection of rotten stuff without any need for manual handpicking etc.  

AI for FinTech 

Fintech, last but not the least, has also seen increasing inventions as the years are passing by and are being facilitated by “going digital” campaigns throughout the world. And since India is also running national campaigns such as “DIGITAL INDIA”, this sector is likely to show innovation more in the coming years. Algorithm trading is picking up the pace enabling most of the stock selling and buying decisions to be taken by computers. 

Conclusion 

In conclusion, the trend of patent filing in AI in India has been on a steady rise in the past few years, with a significant spike in 2020. This is due to various factors such as advancements in technology, increased demand for efficient solutions, government support, and private sector investment. The healthcare, image processing, transportation, edtech, IoT automation, and fintech domains have shown particularly remarkable progress in AI patent filing. The Indian Patent Office's examination of AI-related inventions based on the CRI guidelines provides clarity on what should and should not be allowed in terms of mathematical or business methods or computer programs per se or algorithms. For example, the CRI guidelines have provided clarity that an invention providing technical advancement over the existing art and involving technical effect shall not fall under the purview of section 3(k) of the Indian Patents Act. However, the issue of inventorship in AI-generated inventions remains a challenge that will likely be resolved in the coming years. As the world continues to focus on AI's potential, it is expected that the trend of patent filing in AI will continue to grow in the future. 

 Views expressed are personal.