Today, the Court of Appeal handed down its hotly-anticipated judgment in the Emotional Perception AI case, the first case heard at this level on the patentability of AI-based inventions (specifically, artificial neural networks). Our detailed analysis of the appealed judgment can be found here.
In their judgment, the Court of Appeal upheld the UKIPO’s appeal, deciding that artificial neural networks themselves are computers, and that the series of weights and biases applied to them is a program for a computer. As a result, the claimed use of an artificial neural network was excluded from patentability as a program for a computer. Although not considered in detail, in section 84 of the judgment, Birss LJ suggests that the mathematical method exclusion would likely also bite.
The Court of Appeal also considered whether the recommendation of a file which is semantically similar to another file made a technical contribution. It held that making a recommendation based on semantic qualities based on considerations which are aesthetic in nature, and therefore decided that there was no overall technical contribution.
We now expect the UKIPO to revise and reverse its guidance on the patentability of artificial neural networks, which was previously updated to state that examiners should not object that they are excluded from patentability as programs for computers.
Essentially, business-as-usual is now resumed, and as set out in section 71 of the judgment:
“ANN implemented inventions are in no better and no worse position than other computer implemented inventions ”.
Emotional Perception have said that they have requested permission to appeal to the Supreme Court, so it is possible that the story is far from being over.
More detailed comments to follow, but in the meantime if you have any questions about patentability of AI in the UK or Europe, please get in touch with one of the team here.
