Artificial intelligence is reshaping industries at lightning speed, but it’s also creating brand-new challenges for inventors seeking to protect their innovations. Securing a strong AI patent is more than filling out paperwork. It is about crafting a legal shield that can withstand challenges and keep competitors at bay. Unfortunately, many AI inventors make avoidable missteps that leave their intellectual property vulnerable.
Here are the top five patent mistakes AI inventors make—and how to avoid them.
1. Treating AI as “Just Software”
Mistake: Many inventors lump AI into the same category as traditional software patents, but AI has unique complexities. U.S. patent law often requires demonstrating that your AI invention tackles a technological problem with a technical improvement over existing systems—not just an abstract algorithm. You need to address your AI solution as a technical solution, not just a business or administrative solution. If your patent application does not address this point, it may be rejected.
Solution: Ensure the person drafting your patent understands, and has experience with, machine learning concepts and AI patent eligibility hurdles to frame your invention in the most favorable light towards allowance of the patent.
2. Publicly Disclosing the Invention Too Soon
Mistake: Publishing a research paper, giving a conference talk, or even posting your code on GitHub before filing can jeopardize your rights. In the United States, you have one year from your first public disclosure to file your patent application. In other countries the grace period is only six months and in many countries there is no grace period, public disclosure immediately eliminates your ability to patent your invention.
Solution: Determine when you plan on first disclosing your AI product or offering it for sale (even if you do not end up making any sales). Determine which countries in which you wish to file for patent protection. Determine whether those countries have a grace period on pre-filing disclosures and work then backward from those dates to determine when you need to begin preparing your patent application for filing. Depending on the complexity of your AI solution, drafting a patent application can take 6-8 weeks or more. Most importantly, make sure your patent attorney is familiar with the disclosure rules in the countries in which you wish to file.
3. Overlooking Training Data as Part of the Invention
Mistake: In AI, the training dataset can be just as valuable as the algorithm itself. Yet many inventors fail to include how the dataset contributes to the invention’s novelty in their patent application.
Solution: Describe in detail how your dataset is selected, filtered, and used to train your AI. A strong technological narrative integrates both model architecture and data handling.
4. Failing to Anticipate Rapid Obsolescence
Mistake: AI technology evolves so quickly that by the time your patent is granted, the industry may have moved on. Some inventors file narrowly focused claims that protect only the current version of their invention, leaving them exposed when newer iterations arise.
Solution: Draft patent claims that cover core concepts, while ensuring the patent specification covers alternatives and future variations. This allows you to revise your patent claims down the road as your AI solution changes to meet changing industry demands and technological toolsets.
5. Assuming One Patent is Enough
Mistake: A single patent may protect one aspect of your AI invention, but competitors can work around it by exploiting unprotected components.
Soilution: Discuss a portfolio approach to patents that covers your hardware, algorithms, training methods, and integration techniques. Work with your patent counsel to develop a layered patent strategy that guards against multiple angles of attack.
If your AI invention is worth building, it is worth protecting. It is never too early to start thinking about your AI patent strategy. Conversely, if you wait too long to file your patent application or if you leave something out of your application all or part of your AI product may become part of the public domain, allowing everyone to use your AI product for free.
Brett Trout
Des Moines, Iowa
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