On 21st November 2023, the High Court issued an important ruling in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks  EWHC 2948 (Ch), addressing the issue of whether artificial neural networks (ANNs) fall under the “program for a computer” exclusion of section 1(2)(c) of the Patents Act 1977. The judgment, perhaps unexpectedly, overturned the earlier decision of the Comptroller to conclude that ANNs should not be treated as excluded matter, marking a significant shift in approach at the UKIPO.
Following the Emotional Perception judgment, the UKIPO issued statutory guidance on 29th November 2023 that patent examiners should not object to inventions involving ANNs under the “program for a computer” exclusion. Additionally, the UKIPO has temporarily suspended its guidelines on Examining patent applications relating to AI inventions. The guidelines will be updated to reflect the Emotional Perception judgment in due course. We are closely monitoring for further UKIPO updates and guidelines.
This is an exciting time for innovators of AI-based technologies, and perhaps computer implemented inventions more broadly. Historically, the UKIPO has maintained a relatively stringent stance on computer-implemented inventions, often adopting stricter criteria than the European Patent Office (EPO). However, with the recent judgment and the anticipation of revised guidelines, there seems to be a notable shift in this stance. The invention at the center of this judgment, which offers personalised music recommendations based on emotional and perceptual human responses, represents a case in point. Under the EPO’s criteria, this type of invention could have potentially struggled to meet the requirements for technical character (a key factor in assessing inventive step at the EPO). This development suggests that the UKIPO is moving towards a more lenient and innovation-friendly perspective, particularly for AI-based technologies, indicating a significant change in the patenting landscape for computer-implemented inventions in the UK.