Patenting Artificial Intelligence – UK Update
The Court of Appeal has ruled that Emotional Perception AI’s neural-network based music recommendation tool should be treated the same as any other computer program under patent law, overturning the High Court’s previous decision. In doing so, it dismissed the High Court’s finding that unique features of artificial neural networks (“ANNs”) differentiate them sufficiently to allow them to fall outside the prohibition on patents for “a program for a computer.”
Patenting Artificial Intelligence – UK Update
After finding that the tool was a computer program, the court turned to whether it is nevertheless patentable by virtue of making a “technical contribution” beyond just being such a program. It found this not to be impacted by the features of ANNs and instead the function of the program itself (in this case to recommend a music track) is all that need be considered for the “technical contribution” test.
Emotional Perception AI’s patent application concerns an ANN-based tool for associating and recommending files based on semantic similarity. For example, it would associate musical tracks together based on both their emotional and musical similarity, with music of the same genre and mood being considered closely related. This can be used to select a new track that is sufficiently similar to any given input track.
Comment
Prior to the High Court’s decision, the primary approach to patenting AI inventions in the UK was to navigate the “technical contribution” test. In other words, through seeking patent protection for the use of AI for a specific technical purpose or for a technical means of implementing AI. If this decision had stood, the High Court’s judgment would have fundamentally changed that, broadening the scope of when AI can be patented by allowing the AI implementation itself to be patented. This change was implemented promptly by the UKIPO by way of its revised patent guidelines which were issued on 29 November 2023.
The present judgment will re. Pending news on whether Emotional Perception AI will appeal to the Supreme Court (and, if so, the outcome of such an appeal), we expect that in the meantime the UKIPO will suspend the changes made to their patent guidelines, removing the special treatment for patent applications involving ANNs.
As a result, ANN-based inventions will only be patentable if they make a “technical contribution” which has always been considered difficult to show for computer programs. However, this latest judgment does not prohibit the potential patentability of AI systems and the contributions AI can provide in different fields.
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