Patentability of LLM and AI

LLM (Large Language Model) and AI (artificial intelligence) inventions are patentable in the US. One reason is that, legally, these are not “generic computers.”

A brief history of software patentability in the US

To understand LLM and AI systems from the patentability standpoint, let’s quickly review some history. Until the early 1980s, it was unclear if any software inventions were patentable. Then from about the mid-1990s to 2014, the patent system was relatively permissive. During this era, it was often possible to describe a known process and then teach how to computerize it. Software patents were often granted as long as they weren’t obvious or a repeat of previously known methods.

Then two things happened. One is that as the art advanced, the concept of “implementing a known process using a microprocessor” became evident to everyone, even patent examiners and judges. The other is that an Alice corporation inventor obtained some computer-assisted financial patents. They then tried to assert their inventions against CLS, a large bank with deep pockets. Money talks. The bank took their case to the US Supreme Court (SCOTUS) and won. Unfortunately the Supreme Court nearly wrecked the patent system in the process. Here, I refer to the infamous “Alice” patent eligibility decision.

One “Alice” decision result: “Generic computers” are “bad.”

The mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” [Emphasis added]

We will now skip over about ten years of intense litigation and cut to the present. What does the USPTO do these days? Among other things, under MPEP 2106, pure software inventions that run on “generic computers” and lack “something more” (such as an attached gadget) are vulnerable to 35 USC 101 “Alice” rejections. The term “generic computer” in a USPTO examiner’s office action, or a judge’s decision, often signals an upcoming rejection.

LLM and AI systems are not not considered to be generic computers!

However, from the standpoint of AI and LLM systems (such as ChatGPT, Bard, LLaMA, and related systems), there is good news. The patent legal system does not consider these to be “generic computers.” Indeed, from personal experience, AI and LLM systems and methods seem to be helpful. I have personally saved several software patents from rejection by pointing out the AI or LLM aspects of the invention.

Patent law tends to evolve with time, so there is no guarantee that AI and LLM methods will continue to enjoy “Alice immunity.” However, this technology is new, and the US legal system is presently quite open here. If you have an AI or LLM invention, the USPTO will likely treat it like any other patent. You have a decent chance, at least in the US.