The Court of Appeal has today (19th July) issued a pivotal judgment in the case between the Comptroller-General of Patents, Designs and Trade Marks and Emotional Perception AI Limited.  

This decision, delivered by Lady Justice Nicola Davies, Lord Justice Arnold, and Lord Justice Birss, addresses the patentability of artificial neural networks (ANNs) under Section 1(2) of the Patents Act 1977.  

We will be taking a deep dive into the reasoning in the decision in the coming weeks, but in the meantime, here is our summary of the outcome: 

Program for computer exclusion (Ground 1) 

The Court ruled that the exclusion from patentability of a program for a computer “as such” under Section 1(2) is engaged for ANNs. This applies regardless of whether the ANN is implemented in hardware or software. The court concluded that the weights and biases of an ANN constitute a computer program, bringing them within the scope of the exclusion. 

The Court noted that the Technical Boards of Appeal of the EPO took the same approach in T 702/20 (Mitsubishi), in which the Board reasoned that “a neural network relates to both programs for computers and to mathematical methods”. 

Technical contribution (Ground 4) 

The Court emphasised that the fact that Section 1(2) is engaged in a case of an ANN implemented invention does not mean it is unpatentable. It simply means that ANN implemented inventions are in the same position as other computer implemented inventions (that the actual contribution of the claimed invention must not fall solely within excluded matter). 

Nevertheless, the Court upheld the decision of the Hearing Officer of the UK IPO that the invention claimed by Emotional Perception is excluded from patentability. The recommended files provided by the ANN are recommended for their semantic qualities, which the Court agreed are aesthetic in nature, rather than technical.

The Court also referenced the EPO Technical Boards of Appeal decision T 0306/10 (Yahoo), supporting the view that the aesthetic nature of the recommendations does not constitute a technical effect. 

Mathematical method exclusion (Ground 3) 

While the Court did not need to decide on this aspect of the appeal, it noted that if the weights and biases of an ANN were not considered a computer program, they would likely still be excluded as a mathematical method. The EPO in T 702/20 (Mitsubishi) similarly regarded the mathematical method exclusion as relevant.