Patents
Court of Appeal ruling restores a stricter approach to artificial neural network inventions in the UK
August 16, 2024
The Court of Appeal has overturned a High Court judgement regarding the patentability of artificial neural network (ANN) inventions. The original High Court judgement, issued last year, determined that an ANN does not fall under the “program for a computer” exclusion from patentability in the UK. The Court of Appeal has now overturned this decision such that ANNs can fall under this exclusion.
This Court of Appeal judgement Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI Limited [2024] EWCA Civ 825 permits the exclusion of an ANN from patentability in the UK on the grounds it is a program for a computer as such under Section 1(2) of the UK Patents Act 1977. The approach taken to the patentability of ANN inventions in the UK has therefore been brought closer into line to the approach currently taken at the European Patent Office.
In the decision, the term computer was defined as “a machine which processes information”, and the term computer program was defined as “a set of instructions for a computer to do something”. It was held that an ANN “is clearly a computer – it is a machine for processing information”, and that “irrespective of the manner in which an ANN is implemented (hardware or software), […] these weights (of an ANN) are a computer program. They are a set of instructions for a computer to do something”.
In the words of new statutory guidance issued by the UK Intellectual Property Office following the decision, “patent examiners should treat ANN-implemented inventions like any other computer implemented invention. Examiners should use the Aerotel approach to assess whether the claimed invention makes a contribution which is technical in nature”. In this particular case, the Court of Appeal found that the contribution provided by Emotional Perception AI Limited’s ANN system was not technical, and therefore the ANN was unpatentable. The decision states that “What makes the recommended file worth recommending are its semantic qualities. This is a matter of aesthetics or, in the language used by the Hearing Officer, they are subjective and cognitive in nature. They are not technical and do not turn this into a system which produces a technical effect outside the excluded subject matter”.
In the light of this decision, the UK Intellectual Property Office’s guidelines for examining patent applications relating to AI inventions have been temporarily suspended until an update taking into account this decision is issued.
It remains to be seen whether this decision will be appealed at the Supreme Court.
Michael Loadman
Associate