The English Court of Appeal recently ruled on the patentability of AI, deciding that in the circumstances the particular AI solution was not patentable.[1]
The case
The case concerned a patent application filed by Emotional Perception AI Ltd (“EP”), based on the invention of a system for giving media file recommendations to a user. A good example would be recommending similar music tracks to a person who has just listened to a particular music track.
EP had built a machine using artificial neural networks (ANNs), involving layers of artificial neurons, which processed data and produced an output. The recommendations were achieved by giving a specific weight to each part of the input data and then applying a weighted bias, which in turn affected the output.
The AI machine had to be trained, with the weights being adjusted iteratively so that the ANN produced a given output in given circumstances.
The Court had to consider whether the exclusion from patentability of a program for a computer “as such”[2] applied to artificial neural networks and, if so, whether it applied to the ANN, such as that developed by EP.
The High Court decided that an exception to this exclusion applied because the invention had a “technical effect” – the improved recommendation through using the ANN and that although it could be categorised as a computer, it was a computer without any program. This decision was controversial and led to the appeal to the Court of Appeal.
The Court of Appeal accepted that the ANN was a computer (essentially a machine for processing information) and that the set of weights and biases were the program for this kind of computer (being a set of instructions for a computer to do something).
In view of this, this particular ANN fell with the exception to patentability. The Court said: “It is the semantic similarity of the files here which gives rise to their recommendation but that is not a technical matter at all. Putting it another way, the similarity or difference between the two files is semantic in nature and not technical.”[3]
In conculsion is AI patentable?
Although the Court concluded that this case fell within the exclusion from patentability, it was keen to emphasise that not all ANNs will be unpatentable. It stated that very many computer implemented inventions are outside this exclusion and are patentable and this could apply not only to “traditional” computers, but also ANNs, depending on the circumstances.
An interesting footnote is that, in the light of this court case, the UK Intellectual Property Office has suspended its guidelines on patents for AI[4] so that it can consider the implications of the case for its guidance.
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[1] Comptroller General of Patents -v- Emotional Perception AI Ltd 2024 EWCA Civ 825.
[2] Section 1 (2) Patents Act 1977
[3] Para 81
[4] IPO Guidelines for examining patent applications relating to artificial intelligence.