AI Patentability goes to the Supreme Court

In a landmark decision handed down in July 2024, in Emotional Perception v Comptroller UKCA, the UK Court of Appeal ruled against Emotional Perception AI Ltd, declaring that its neural network-based recommendation system was a “computer program as such” and thus excluded from patent protection. The saga continues however, as The UK Supreme Court (UKSC) has now granted leave to appeal this decision, which promises further implications for innovators and the patenting of AI systems.

Technology

Emotional Perception’s invention involves a sophisticated deep learning system designed to recommend music files based on both semantic properties (e.g. melancholic or excited) and musical attributes (for example, timbre and musical tone). The system integrates two artificial neural networks (ANNs): one for semantic analysis and another for musical analysis. These networks learn from labelled training data to cluster songs based on their similarities, combining scores from both domains to refine recommendations. Crucially, it was argued the invention can be implemented in hardware (using hardware ANNs) or software (using software-emulated ANNs).

While this system clearly demonstrates technical ingenuity, the question is whether its underlying mechanisms qualify as a patent-eligible “technical contribution” under UK patent law.

The Court of Appeal’s Decision

The Court of Appeal’s judgment overturned the High Court decision. The Court of Appeal delivered a unanimous opinion and provided expansive interpretations of how a “computer” and “computer program,” should be defined, shifting the legal treatment of ANNs.

The court reasoned that a “computer” is a machine that processes information, and a “computer program” is a set of instructions enabling a computer to perform tasks. Under this framework the court ruled that the weights and biases of an ANN – parameters that determine its processing behaviour – are a set of instructions. Consequently, both hardware and software ANNs were deemed computer programs, broadening the exclusionary scope under UK law.

While the High Court had previously entertained the argument that hardware ANNs might escape the “computer program as such” exclusion, the Court of Appeal rejected this view.

The Court of Appeal concluded that Emotional Perception’s invention lacked the necessary technical contribution. While the system’s functionality involves technical processes, the ultimate output of “improved file recommendations” was deemed to be based on purely subjective considerations and thus inherently not “technical” in nature. Citing precedents such as the European Patent Office (EPO) decision in Yahoo, the court emphasized that aesthetic or user experience improvements do not suffice for patentability under UK law.

Implications – Revised Patent Examination Guidelines

Following the decision, the UK Intellectual Property Office (UKIPO) reverted to treating ANN-based inventions like other computer-implemented inventions under s.1(2) of the Patents Act 1977. Previous guidance favouring certain ANN implementations has now been suspended, and patent applicants must demonstrate a clear technical contribution going beyond mere computational methods.

Looking Ahead – The Supreme Court Appeal

The UK Supreme Court is the final court for appeal and decision to grant leave for the appeal highlights the legal significance of this case. Emotional Perception is expected to raise challenges based on:

• The classification of ANNs as computer programs and the definition of a computer, specifically that the Court of Appeal’s definitions are too broad and encompass machines that would not generally be considered to be computers (such as an operational amplifier).
• The divergence between UK practice (UK Patent Act 1977) and EPO practice (European Patent Convention 2000) on the treatment of computer programs and in particular AI inventions.
• The Court of Appeal’s application of finding a ‘technical contribution’.
• Alleged inconsistencies with Art. 27 of the agreement of Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’).

The Supreme Court’s eventual ruling, likely in 2025, has the potential to reshape the UK’s approach to AI patentability, potentially bringing it closer to – or further distinguishing it from – the EPO’s practices. Historically, the EPO has applied a differently structured methodology, which is designed to provide similar results to what we see in the UK but can often create diverging results for borderline cases.

Final words

The Court of Appeal’s decision in Emotional Perception v. Comptroller has currently re-asserted some of the patent drafting conventions for patentability of AI technologies in the UK, particularly for inventions involving neural networks. As the case progresses to the Supreme Court, all eyes will be on the ruling’s potential to influence not just AI-related patents but the broader treatment of computer program exclusions in the UK.

Whether the outcome fosters greater alignment with EPO standards or entrenches the UK’s distinct approach, the stakes for innovators, legal practitioners, and policymakers alike are relatively high. For now, at least, the decision underscores the importance of crafting patent applications with a clear emphasis on technical contributions that extend beyond software functionality.