Audio version:
Filing for patents is a particularly important priority for start-up companies and entrepreneurs working in brain machine interface technologies. Patents and patent applications are frequently a critical consideration for early-stage investors. “Angel” investors will want to see patent applications filed as an indication of the sophistication of the startup, as well as some protection for their investment. Early-stage venture capital will be looking for issued patents and patent applications as validation of technology maturity, as well as a fall back asset in case the company fails. Later stage venture capitalists will be looking for issued patents as protection against other companies simply stealing the technology, as well as validation of the long-term prospects of the company. Ultimately, selling the business to a large corporation will involve an analysis and valuation of the intellectual property portfolio. Thus, creating and building the intellectual property portfolio should be an early and continuing component of the business strategy for brain machine interface technology companies.
However, brain machine interface technologies are not like most other technologies. These new technologies pose unique challenges when it comes to patenting inventions. This is due to some nuances in US patent law, as well as fundamental concepts in patent laws around the world. If special attention is not paid to these issues when developing and patenting brain machine interface technologies, patents on key innovations may be up beyond reach and startup companies and revolutionary inventions could be stillborn.
Patents involving interactions with the human body and human systems are given close scrutiny by patent offices and courts around the world. In many countries, patents are not permitted on methods of treating patients, and thus patents relating to human/machine interactions may be given close review to confirm whether they comply with the nation’s patent laws in this regard. Within the United States, the US Patent and Trademark Office is strict when examining patent applications affecting human beings, such as medical devices, methods of treating diseases, and inventions that exploit biological interactions.
The nature of how patents involving interactions with the human body are scrutinized will likely raise three key issues related to patenting brain machine interface technologies. A strong patent portfolio for brain machine interfaces will take these challenges into consideration.
One of the first challenges is that brain-machine inventions necessarily involve humans and their brains interacting with a machine. It is a fundamental concept of patent law that you cannot patent a human. Thus, claim elements that recite human or human biology interactions may be unpatentable as a matter of law. Patent claims will not issue on human behaviors and no court would enforce a claim that would find infringement for a person thinking or behaving in a particular way. Further, no patent claim is likely to issue reciting an inherent characteristic of human biology or physiology, such as particular brainwave patterns.
A second challenge is due to the unpredictable nature of human brains, brainwaves and thought patterns. The less predictable the science involved or underpinning an invention, the greater the amount of proof that must be presented in a patent application to establish that the invention actually works as claimed. The development of new drugs is replete with examples of how a new compound failed to yield medical beneficial results despite solid science. This is because the biochemical system of humans is not so perfectly understood that the results of the response to drugs can be easily predicted. Further, the natural variability of physiological and biochemical systems in people adds to the degree of unpredictability. Thus, pharmaceutical inventions require demonstration of effectivity along with experimental results that underpin the claims. In contrast, electrical circuits are easy to understand and predict, and therefore, patents on electronics and computer systems typically have very little, if any, proof that the invention will work as claimed. Brain machine interface technologies based on sensing human physiological characteristics will most likely require greater proof of effectiveness and repeatability than is the case for most electronics and computer inventions.
A third challenge likely to be faced when patenting brain machine interface technology inventions involves the extent to which artificial intelligence or machine learning is essential to functionality. For example, a brain machine interface that relates brainwave patterns to particular commands or interface communications might rely on the use of machine learning to recognize patterns and equate them to specific commands or other information. Artificial intelligence is likely to be a core element of many brain machine interface inventions, because everyone’s brain and brainwaves are unique, requiring individualized configurations. However; when an invention uses artificial intelligence, the question arises regarding whether the machine is an inventor, especially when the key functionality is “learned” by a machine.
Each of these three challenges represent strategic considerations for a strong brain machine interface focused patent portfolio. Having a number of patent applications pending may not be enough. Early-stage investors, and particularly venture capital firms, understand the difference between a weak and a strong patent application. Patent applications will be given close scrutiny during due diligence by investors or acquirers. Thus, filing applications without consideration for the legal challenges in the brain machine interface technology may be a waste of money. Even worse, investing in weak or worthless patent applications may telegraph to early-stage investors that management presents a risk to their investments.
