On 19 July 2024, the Court of Appeal handed down its judgement in Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825. In the judgement, the Court of Appeal has decisively overturned the earlier judgement issued by the High Court in November 2023.
The High Court had previously ruled that the exclusion from patentability of “a program for a computer … as such” was not engaged by an artificial neural network (ANN). In other words, the court ruling meant that features implemented using an ANN must be treated as more than simply a computer program.
Under that previous ruling, an invention implemented using an ANN may have been found to be patentable, avoiding the UK’s “computer program” exclusion, whereas an equivalent invention applied in software that did not use such a machine-learning framework, would likely not obtain a patent. In this way, the earlier ruling treated ANNs differently to other computer programs and was generally considered more favourable for applicants seeking to patent AI inventions.
Decision from the Court of Appeal
Following an appeal of the High Court judgement, the Court of Appeal has now ruled that an ANN is a computer, and that the weights and biases of an ANN are a program for a computer. The Court of Appeal has been clear in that these statements apply for both a hardware-implemented ANN and a software-implemented ANN, which was an important point in the proceedings before the High Court.
Following the Court of Appeal judgement, the UKIPO website mentions that the office is making immediate changes to its practice for the examination of ANNs.
The Court of Appeal judgement emphasises “the fact the exclusion is engaged … simply means that ANN implemented inventions are in no better and no worse position than other computer-implemented inventions”. In short, ANN-implemented inventions are to be treated the same as any other computer-implemented invention and thus remain patentable provided that the claimed invention makes a contribution which is technical in nature. The judgement reaffirms that the question of whether a program for a computer is patentable is answered by correctly characterising the function of the program, and the judgement has provided an endorsement of the familiar Aerotel approach and AT&T signposts.
In the Emotional Perception AI case, the function was characterised as providing improved music file recommendations which was considered to be subjective and cognitive in nature and thus not a technical contribution. On this basis, the claimed invention was held to be excluded from patentability as a program for a computer as such.
Moving forward
The Court of Appeal judgement will come as little surprise to many and provides an endorsement of the approach that the UKIPO had previously used to assess ANN implemented inventions prior to the High Court judgement.
However, we understand that Emotional Perception AI has sought leave to appeal this decision to the Supreme Court, and so we may see yet further developments of the law in this area.
Whether an AI or software invention meets the requirements of patentability in the UK often requires expert analysis. The team at Forresters includes a number of patent attorneys with extensive experience in AI and software inventions. If you have an AI or software invention and would like advice in securing IP protection, please get in touch with our team.
