UK Patentability for Artificial Intelligence

The UK High Court has issued an important ruling in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks, overruling the UK IPO and deciding that trained artificial neural networks (ANNs) do not fall under the "program for a computer" exclusion of section 1(2)(c) of the Patents Act 1977. The UK IPO has suspended its guidelines on how it examines patentability of AI related inventions and has stated that "patent examiners should not object to inventions involving ANNs under the "program for a computer" exclusion".  We understand the UK IPO is also appealing the decision.

The Emotional Perception invention was concerned with training an ANN to perceive semantic similarity or dissimilarity between media files such as music files and using the trained ANN to recommend a file which is semantically similar to a given input. The UK IPO had accepted that the invention represented an improvement on the identified prior art, but had refused the application as falling within the exclusion relating to a "program for a computer … as such".  It should be noted that the claims were directed to the ANN after having been trained.

On appeal at the High Court, Sir Anthony Mann concluded that the claims fell outside the "program for a computer" exclusion.  In particular, he accepted the submission that a trained ANN is not in itself a program for a computer. Whilst an ANN may be implemented in hardware or emulated in software, he considered that the trained ANN, and in particular that it was self-taught and did not operate according to code provided by a programmer, meant that the claimed ANN (whether in the form or hardware or emulated) was not a program for a computer.

Earlier UK Court decisions, following practice at the EPO, have considered that the provision of a 'technical effect' is sufficient for a claim to avoid being considered a program for a computer "as such". The Judge considered this provision and decided that the system sending a file containing a recommendation to a remote user that had been identified as being semantically similar by the application of technical criteria which the system has worked out for itself was a technical effect outside of a computer therefore also avoids the claim being excluded as a program for a computer as such.

This is clearly an important decision and opens up opportunities for patentees, perhaps also in computing areas beyond AI related inventions. Further consideration of this case in the appeal will also help solidify the UK's approach in this area.  

Until now, the UK IPO's approach to computer implemented inventions was generally considered to be more restrictive than the approach taken by the EPO, even though the wording of the provisions on patentability that the two offices apply is identical.  The UK Court's decision here on both what is (not) a program for a computer and also on "technical effect" differs from, and is far more lenient than, the approach we would expect from the EPO.  A direct filing in the UK for computer related inventions, particularly those in areas such as AI should therefore be considered by applicants.  However, it is important to note that the claims considered patentable by the Judge are reasonably specific as to the features of the ANN and also only cover the trained ANN (leaving quite an interesting challenge to prove infringement).  

I particularly welcome the impact that this decision should have on examination of patents for computer related inventions before the UK IPO. While many inventions rightly should not achieve patent protection, that decision should be because of lack of novelty or inventive step, not because of a broad brushed approach of a policy that a program for a computer is somehow less worthy of protection than a physical widget or a chemical composition.