Die Patentfähigkeit verbotener Praktiken im KI-Bereich

I. The EU's AI Act prohibits certain AI practices, which are deemed to be in contravention of fundamental EU values, including fundamental rights, such as human dignity, personal freedom and equality. II. In the field of patent law, this raises the question whether the aforementioned prohibitions automatically result in pertinent practices being excluded from patentability under Sec. 2 of the German Patent Act (PatG) and Art. 53(a) of the European Patent Convention (EPC), given that these provisions exclude from patentability inventions whose commercial exploitation would be contrary to ordre public or morality. Notably, such exploitation shall not be deemed to be so contrary merely because it is prohibited by law. III. The vast majority of prohibitions enumerated in Art. 5 AI Act encompass specific exceptions within the operative part or in the recitals. Thus, they leave open the possibility of exploiting pertinent inventions in conformity with the law. This precludes a blanket exclusion from patentability regarding prohibited AI practices. IV. Only the prohibition of AI systems for creating or expanding facial recognition databases through the untargeted scraping of facial images from the internet or CCTV footage is not subject to any specific exceptions. V. The AI Act privileges (scientific) research and development by general exclusion from its scope of application (Art. 2 (6) and (8) AI Act), which also encompasses commercial exploitations within the meaning of patent law. These privileges weigh against the assumption that the AI Act would automatically lead to exclusions from patentability for prohibited practices. VI. The exception for military purposes constitutes an external gap and has no independent significance for the patent law assessment of a violation of ordre public or morality. VII. Notwithstanding these general observations, and while there is no general exclusion of the patentability of certain AI practices prohibited by the AI Act, a case-by- case examination remains necessary. Such an examination must be based on the intended use of the invention as objectively apparent from the patent application. In practice, it is to be expected that patent applicants will exclude critical forms of implementation by means of appropriate disclaimers in their applications. VIII. The AI Act employs a differentiated regulatory technique that is commensurate with its complex regulatory objective of promoting human-centred and trustworthy AI without unnecessarily restricting innovation. The restriction of certain modes of exploitation in the AI Act is sufficient to enforce the value judgements expressed in the prohibitions, without the need for an additional blanket exclusion from patentability.