UK Patent Law and Practice Becoming More Receptive to AI-Based Inventions

December 1, 2023
By Cameron Gale and Alfred A. Macchione

In good news for developers of AI technologies, the United Kingdom Intellectual Property Office (UKIPO) has changed its practice to make it easier to patent AI-related inventions.

On November 29th, the UKIPO released a guidance document entitled “Examination of patent applications involving artificial neural networks (ANN)”[1]. The guidance document directs Patent Examiners to not object to inventions involving an ANN under the “program for a computer” exclusion set out in the UK Patents Act. The guidance document follows from a recent High Court decision finding that a patent application involving ANNs was not excluded from patentability for being a computer program as such.  The High Court decision and subsequent guidance document remove a significant hurdle for patent applicants looking to patent inventions involving ANNs in the UK.

A longstanding provision of the UK Patents Act excludes “a program for a computer…as such” from being eligible for patent protection. The UKIPO has used this exclusion to reject patent applications relating to various types of AI-related inventions including inventions involving artificial neural networks (”ANNs”). This was the case for a patent application filed by Emotional Perception AI Ltd entitled “Method of training a neural network to reflect emotional perception and related system and method for categorizing and finding associated content” (“Emotional Perception Application”). The Emotional Perception Application claimed a media file recommendation system that uses a trained artificial neural network to provide file recommendations to a user, such as recommendations of music tracks similar in terms of human perception and emotion to music tracks the user tends to listen to.

The UKIPO had rejected the Emotional Perception Application on the basis that the invention falls solely within the exclusion for “a program for a computer as such”. Emotional Perception appealed. At the High Court, Justice Mann overturned the decision of the UKIPO (see Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) [Emotional Perception Decision]).

Justice Mann noted that an ANN (like the one claimed in the Emotional Perception Application) could be implemented in hardware or in software. For a hardware implementation of an ANN there is no program to which the exclusion could apply (see Emotional Perception Decision at [43]). Justice Mann further held that a software implementation of the ANN (i.e. an emulated ANN) should equivalently be considered to be operating in the same way as a Hardware ANN, and thus should not be excluded for being a computer program as such (see Emotional Perception Decision at [56]). Removing any such distinction between hardware and software implementations is important for patent applicants because it allows them to protect the full scope of their inventions.

Justice Mann also explained that even if the contrary position prevailed, and the claimed system had been found to involve a computer program, the system would nevertheless meet a further requirement of U.K. patent law by providing a technical contribution that is not solely the operation of a computer program as such. In particular, the identification and transmission of a semantically similar media file through the application of technical criteria (i.e., the selection of the file by the ANN) results in the output of a file that would not otherwise be selected. Justice Mann found this to be a technical effect outside the computer that further avoids the computer program exclusion (see Emotional Perception Decision at [76]). This provides applicants with further ammunition to argue that AI-based inventions using ANNs should be patentable.

Lastly, Justice Mann dealt with the point as to whether the Emotional Perception Application should be rejected on the basis that the claimed ANN and its associated training method are no more than an abstract mathematical algorithm, which is a further potential exclusion for such inventions under UK patent law.  Justice Mann held that the point was not at play due to it not being properly raised procedurally on appeal.  In any event, the UKIPO had found that the specific application of the ANN as part of a file recommendation engine avoided the exclusion pertaining to mathematical algorithms.

The Emotional Perception Decision is a good sign for patent applicants that the UK is more receptive to patenting AI-based inventions.  While it remains to be seen whether the UKIPO will appeal the High Court decision, at least for now there is one less hurdle for inventors to overcome in patenting AI technologies in the UK that involve artificial neural networks.




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