In a significant stride towards fostering innovation in artificial intelligence (AI), the United Kingdom Intellectual Property Office (UKIPO) has revamped its practices, making it more accessible for developers to patent AI-related inventions. The recent release of the guidance document titled “Examination of patent applications involving artificial neural networks (ANN)” on November 29th signals a transformative shift, inspired by a recent High Court decision and aimed at facilitating the patenting of inventions involving ANNs.

High Court decision sparks change

The pivotal High Court decision, as exemplified in the case of Emotional Perception AI Ltd v Comptroller-General of Patents, Designs, and Trade Marks [2023] EWHC 2948 (Ch), has played a crucial role in reshaping the landscape of AI patentability. The court found that a patent application involving ANNs should not be excluded from patentability on the grounds of being a computer program. This decision prompted the UK IPO to release a guidance document aligning its practices with the High Court’s findings, thus eliminating a significant hurdle for patent applicants seeking protection for inventions involving ANNs in the UK.

Traditionally, the UK Patents Act excluded “a program for a computer…as such” from patent eligibility under section 1(2)(c) of the UK Patents Act 1977. The UK IPO had utilized this exclusion to reject various AI-related patent applications, including Emotional Perception AI Ltd’s application for a media file recommendation system utilizing ANNs. However, the High Court decision, rooted in a nuanced understanding of ANN implementations in both hardware and software, dismantled this exclusion. The ruling emphasized that software implementations of ANNs should not be excluded on the basis of being a computer program “as such,” removing the distinction between hardware and software implementations and broadening the scope of patent protection.

Justice Mann’s detailed analysis in the Emotional Perception Decision outlined that even if the system were considered to involve a computer program, it would still meet the requirements of U.K. patent law by providing a technical contribution beyond the operation of a computer program “as such”. More specifically, the identification and transmission of a semantically similar media file through the application of technical criteria (i.e., the selection of the file by the ANN) results in a technical output of a file that would not otherwise be selected.

Looking ahead

The recent developments in the UK IPO’s practices, spurred by the Emotional Perception Decision, represent a positive shift for AI innovators seeking patent protection. Although the practice note is only concerned with ANNs, there is no rational reason why the UKIPO should adopt a stricter approach to inventions using machine learning techniques other than ANNs. This evolving landscape positions the UK as an attractive forum for patenting AI-related inventions involving ANNs. For example, The UKIPO’s new practice is more favourable than that of the European Patent Office (EPO), whose practice is to regard inventions involving AI as “mathematical methods” unless they are limited to a particular technical implementation or a specific technical purpose. As the global AI community closely watches these advancements, it is evident that the United Kingdom is embracing a more inclusive and innovative approach to intellectual property in the realm of artificial intelligence.

If you have any questions about the decision or for any further information about protecting your intellectual property get in touch to speak to one of our attorneys.