Canada’s Intellectual Property Firm

IP and AI: Considerations for artificial intelligence innovators

Authored byBenjamin Mak, Greg Hong

Smart & Biggar in collaboration with Vector Institute, developed a series exploring the dynamic relationship between AI and IP. In this series, designed to help support Canadian startups and research professionals, Vector dives into how AI innovation intersects with intellectual property, discussing trends, challenges, and strategies that shape this ever-evolving landscape.

In the rapidly evolving AI landscape, IP plays a pivotal role in driving success and safeguarding your unique ideas. Unlike traditional tangible assets, IP represents intangible creations that hold immense value. To maximize the potential of these assets and optimize their value to your business, a well-crafted IP strategy is crucial.

Table of Contents

Intellectual property and generative AI: Many questions, few answers

The sudden ubiquity of generative AI that accompanied the public introduction of ChatGPT has left many fields scrambling to adapt, and intellectual property (IP) law is no exception. The first wave of IP problems associated with generative AI, such as conflicts surrounding training data and copyright, is currently making its way through the legal system.

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Ownership of IP: Do you own your invention?

The question of inventorship is typically only raised as part of a development team. An “inventor” is generally considered to be an individual who has made an inventive contribution to any single aspect of the invention that is claimed in the patent. The process of inventing can include the conception and or reduction to practice of the invention. 

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Patent searching: How to find out if you really invented something

In order to be protected by most patent systems, the invention you submit must be “novel” or new. That is, it must not have been previously disclosed to the public, whether by the inventor or any other person. A “public disclosure” of an invention can arise by any disclosure that even hypothetically permits another person to determine the invention, if that person was not bound by any obligation of confidentiality.

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Protecting inventions related to improvements to data and novel inputs and outputs

Artificial intelligence is a fresh field ripe for patenting of many forms of inventions, including smaller improvements to existing methods. It is important to keep in mind that an idea need not be revolutionary to be protected by patent and commercialized – incremental improvements are also valuable and can be protected. Many of these incremental improvements could relate to novel inputs and outputs or improvements to data sourcing, formatting, or labelling.

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Patenting AI models: Avoiding the dreaded subject matter objection

When you try to patent your AI model, you should be wary of a nefarious legal objection: patentable subject matter. Patentable subject matter is an area of law that has a long history of being unclear and highly contested. Fortunately, the inventive aspects and technical character of a new AI model are often relatively straightforward; they likely have a readily identifiable new additional element or novel model structure. As such, the courts and examiners have been relatively kind to inventive AI models, as long as the invention has a stated purpose.

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Ready to learn how to secure and leverage your AI?

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If you have questions or require further information, please contact a member of the Patents group at Smart & Biggar.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.