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Update – November 2024: Leave to appeal granted by the UK Supreme Court
On 25 November 2024, the UK Supreme Court granted Emotional Perception AI permission to appeal against the negative UK Court of Appeal decision analysed below.
We expect a hearing and maybe even a UK Supreme Court decision in 2025. The UK Supreme Court may just agree with the UK Court of Appeal that ANNs are effectively computer programs and therefore excluded under Section 1(2) of the Patents Act, or they may find another reason that the subject matter claimed by Emotional Perception AI is excluded from patentability. However, there is also now a chance that ANNs are seen as inherently patentable by the UK’s top court. This would be a major breakthrough in patentability of AI.
Caroline Day does an initial analysis of the Court of Appeal’s decision in the much anticipated UKIPO vs Emotional Perception AI case, published on 19 July 2024.
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The day has arrived: we have a decision from the Court of Appeal in relation to the UKIPO vs Emotional Perception AI Ltd appeal and if you’re one of those people who were hoping to hear that ANNs are inherently patentable in the UK, you should look away now.
Judgement summary
As the briefest of recaps, computer programs ‘as such’ are excluded from patentability in the UK. An argument had been run to the effect that ANNs were not conventional computers running programs – they were something different entirely. However, that is firmly shut down in paragraph 70 of the judgement[i]:
“…the weights (by which I mean weights and biases) of the ANN are a program for a computer and therefore within the purview of the exclusion.”
However, there has always been an escape for computer programs in terms of that exclusion, specifically when the program achieves a technical contribution. This is a point which turns much more on the specific invention under consideration, here a way of recommending files to a user. This is addressed in paragraph 79 of the judgement, which sets out:
“What makes the recommended file worth recommending are its semantic qualities. This is a matter of aesthetics or…[is] 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.”
Court decides ANNs are not special
In summary then, when it comes to patentability, the decision of the court is that ANNs are not special. Paragraph 71 sums it up:
“…ANN implemented inventions are in no better and no worse position than other computer implemented inventions.”
What is interesting to the practitioner in this area is the general leaning in the EPO approach demonstrated throughout the decision: one aspect which can contribute to patentability of an ANN, or any other computer implemented invention, is a technical use case.
So what next?
We assume that the UKIPO will withdraw its current practice note instructing Examiners to treat ANNs differently. We also know that the Patentee has sought leave to appeal to the Supreme Court on issues such as what amounts to a technical contribution in the context of computer implemented inventions, whether Art 27(1) TRIPS has been properly considered, and whether this decision diverges from EPO practice.
We will of course keep you up to date with any and all significant developments and should you have any questions in the meantime, please do get in touch with our AI team.
This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact hlk@hlk-ip.com or your usual HLK advisor.
