The Court of Appeal (CoA) overturned the first instance decision and held that an AI invention cannot be patented as nothing differentiates it from a typical computer programme under English law.
Background:
This case concerns an application to patent by Emotional Perception AI Ltd. The invention is a system for providing media file recommendations to a user without human interaction. The system relies on an artificial neural network (ANN) which is a machine comprised of a network of artificial brain cells. The invention uses an ANN to provide music recommendations based on the semantic similarity of songs. The High Court Judge held that no computer programme was involved for hardware-implemented ANNs so the exclusion was not applicable. The UKIPO appealed this decision.
Decision:
The main issue was whether an ANN – which is the backbone of the machine learning system on which modern AI is based – falls within the exclusions under Section 1(2) of the Patent Act 1977 (as amended). The Court agreed with the Comptroller’s argument that ANN-implemented inventions involve a computer program and therefore fall within the exception of ‘computer programme… as such’ under Section 1(2). Central to this discussion was the Aerotel test, which both the Comptroller and Emotional Perception agreed remains the appropriate test for determining whether an invention pertains solely to excluded matter.
The Court noted that ANN-implemented inventions can be patentable. As Birss LJ explained how the exclusion “simply means that ANN-implemented inventions are in no better and no worse position than other computer-implemented inventions”. The Judges were not convinced by the argument that ANNs were not conventional computers running programmes.
The Court did not go into the discussion of whether ANNs are mathematical methods, yet recognised that this argument would have “had traction if the conclusion was that weights and biases of an ANN were not a computer programme.”
Implications:
This case clarifies what is patentable regarding ANN or other computer-implemented inventions such as the technical use case. It also highlights that ANNs are to be treated in the same manner as computer programmes. The underlying discussion in the case highlights the lack of an established definition of computer or computer program for the purpose of the Patents Act 1977.
The CoA refused Emotional Perception’s application for permission to appeal to the UK Supreme Court, although they are entitled to petition the Court to grant permission to appeal and so this might not be the end of the matter.
This decision did not bring the expected outcome, nor the expected AI-friendly approach which then conflicted with the national AI strategy aiming at making the UK an AI superpower. Instead, it demonstrates that the UK still follows a similar approach to the European Patent Office (EPO). The reliance on EPO decisions reveals the relevance of such an authority for the UK.
The UK Intellectual Property Office (UK IPO) will have changed its guidance on the examination of patent applications relating to artificial intelligence, which was updated following the first instance judgement.