The UK’s Patents Act 1977 § 1(2)(c) excludes, from patent protection, “a program for a computer.”  Under this exclusion, the UK Intellectual Property Office (UKIPO) rejected Emotional Perception AI Ltd.’s patent claim, which included an Artificial Neural Network (ANN).  However, on November 21, 2023, the High Court overturned the rejection, stating that the exclusion did not apply.  In response to the High Court’s decision, the UKIPO temporarily suspended its guidance on patent applications relating to AI inventions, and issued interim guidance that Patent Examiners should not object to inventions involving ANNs under the “program for a computer” exclusion.

In the case in question, Emotional Perception AI Ltd. v. Comptroller-General of Patents, Designs and Trademarks, ([2023] EWHC 2948 (Ch)), the invention related to providing media file recommendations (e.g., music recommendations, etc.) using AI.  The claim trained an ANN in a particular way, identified relevant media files with the trained ANN, and then sent the relevant files over a communications network to a user device.

Emotional Perception AI notes that there are two implementations of an ANN: hardware and software.  (see paras. [14] and [18]).  Regarding the hardware implementation, the Court states that the “program for a computer” exclusion does not apply (e.g., a piece of hardware is not a computer program).  (see para. [43]).  Regarding the software implementation, the Court notes that the software implementation is an emulation of the hardware ANN.  (para. [18]).  In light of this, the Court decided that the software implementation should be viewed similarly as the hardware implementation, stating, “it is appropriate to look at the emulated ANN as, in substance, operating at a different level (albeit metaphorically) from the underlying software on the computer, and it is operating in the same way as the hardware ANN.  If the latter is not operating a program then neither is the emulation.”  (para. [56]).  The Court accordingly concluded that an ANN is not a “program for a computer” for purposes of the UK’s Patents Act.  (see para. [58]).

In addition, although the conclusion that an ANN is not a “program for a computer” was dispositive, the Court nevertheless went on to address whether the claim included a technical contribution.  (see paras. [63]-[78]).  In particular, the Court reasoned that there was a technical contribution because the ANN selected the file in a technical way, and that the claim further moved the selected file outside the computer (e.g., to the user device). 

The decision in Emotional Perception AI could suggest that the UK is becoming a friendly place for AI based innovations, and possibly for other computer-implemented inventions as well. 

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