Insights from Marks & Clerk's AI report

Marks & Clerk has published its fifth annual AI Report amid the International Year of Quantum Science and Technology, shedding light on the increasing convergence of Artificial Intelligence and Quantum Computing (QAI) within the European patent system. The report indicates that AI patent publications at the European Patent Office (EPO) reached an all-time high in 2024, reflecting continuous robust investment and output in European AI development.

While the United States and South Korea lead significantly in per capita AI patent filings at the EPO, leaving Japan and Europe in a widening innovation gap, Japan has made remarkable strides in quantum AI, surpassing even the US in per capita QAI publications. The report also highlights that the allowance rate for Quantum AI applications at the EPO is currently approximately 4% lower than the average allowance rate for classical AI applications, indicating that these new applications face greater scrutiny or complexity.

Looking ahead, the market for QAI-driven optimisation is projected to exceed $2 billion by 2030, underscoring the urgency for companies to secure foundational intellectual property before the market matures. Although there is sustained growth in AI and QAI patent filings at the EPO, the report notes that QAI applications are currently experiencing a slightly lower allowance rate compared to classical AI inventions. This downturn may stem from the EPO’s stringent interpretation of what constitutes a "technical problem," thereby threatening innovators' ability to safeguard foundational QAI technology and attract investment.

Many QAI applications target "optimisation problems," areas where quantum computers excel. However, a considerable number of these commercial use cases relate to problems classified as "non-technical" by the EPO. In contrast, classical AI technologies have numerous commercial applications like medical imaging, speech processing, and robotics, which align more closely with the EPO's patentability requirements. As a result, QAI's broad applicability to various "non-technical" issues puts many critical inventions at risk of being unpatentable if not carefully considered during the drafting process.

Rhian Granleese, AI Report Author and Partner at Marks & Clerk, expressed concerns about the implications of the EPO's focus on technical character, stating that “AI inventors in the quantum space may struggle to protect many applications of quantum optimisation technology, such as supply chain design, maintenance scheduling, and transport logistics.” Granleese emphasised that for QAI technology to achieve its commercial potential in Europe, the industry must immediately pivot its intellectual property strategy. “The key to protection lies in the 'how', detailing the specific, novel interaction between the AI algorithm and the quantum hardware itself. This detail of how the software interacts with the hardware is one of only a few defensible routes to obtaining protection in the current European patent landscape.”

For those interested, Marks & Clerk’s 2025 AI Report is available to download at marks-clerk.page/ai-report-2025

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