Patentability Implications of the EU AI Act
Novelty is a core requirement for any invention to be patentable. Put simply, your invention generally cannot have been publicly disclosed before the patent application’s effective filing date. In the United States, 35 U.S.C. § 102 includes a one-year grace period for certain public disclosures made before you file—many other jurisdictions do not have this grace period. Europe, for example, generally applies an absolute novelty standard, where your invention can be barred from patentability if you publicly disclose first and file later.
The Impact of the EU AI Act
This is where the EU AI Act can create an unexpected patentability issue. The Act sets out a comprehensive framework for regulating AI and includes a mandatory registration requirement for AI systems considered high-risk. An AI system is considered high-risk when it relates to areas such as safety components, critical infrastructure, education, border control, and law enforcement.
Before a high-risk AI system can be placed on the market, the provider must register the system with the EU Commission and submit information about the system in a searchable and publicly accessible EU database. If the information submitted includes enabling technical details, that registration can function as a public disclosure and can block patentability in absolute novelty jurisdictions like Europe and China.
Strategic Considerations for Companies
Bottom line: if EU AI Act registration is on your roadmap, build IP planning into the timeline. Companies should consider preparing and filing patent applications at or before submitting information to the EU Commission, so their own disclosures do not become prior art against later-filed patent applications.
