On November 21, 2023, the UK High Court issued a judgement—in Emotional Perception AI Ltd v Comptroller-General of Patents [2023] EWHC 2948 (Ch.)—limiting the grounds for rejecting patent applications directed to Artificial Neural Networks (ANNs). In its decision, the Court ruled that Patent Examines should no longer object to inventions related to ANNs based upon the “program for a computer” exclusion rule of the Patents Act of 1977.
As a result, the UKIPO issued (near immediate) guidance for future patent examinations as a result of the exclusion. The Office recognizes two situations (identified by the Court) in which an ANN may be implemented - through hardware or though software.
In either situation, though, the “program for a computer” exclusion should no apply. If implemented by hardware, there is “no program” for which the exclusion can apply. By contrast, if implemented by software, then the “emulated ANN” is essentially operating as the hardware it emulates, and the exclusion is equally inapplicable.
To further distinguish from “programs” that may be properly excluded, the Court also determined that the ANN (in this particular case) “reveals a substantive technical contribution.” This contribution is in the form of (at least) a file that is transferred, which further avoids the computer program exclusion.
Further updates to the UK's Manual of Patent Practice will be forthcoming consistent with the decision. However, the decision and updated guidance provide a promising avenue for expanded patentability of Artificial Intelligence inventions in a region that has traditionally been quite restrictive when it comes to patentability of software inventions.
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