Separately, the judge also considered the music recommendation system embodied in the ANN and its identification of a media file for recommendation was based on “technical criteria which the system has worked out for itself”, and that the output of these media files thereby constituted a technical effect outside the computer for the purposes of avoiding the subject-matter exclusion.

Following that judgment, the UK Intellectual Property Office (UKIPO) issued a practice note instructing examiners to treat ANNs differently to other computer programs. However, it also took the unusual step of appealing the decision, and following a hearing in May the Court of Appeal has now handed down its judgement.

The court has quite firmly rejected the notion that an artificial neural network is a breed apart from a conventional computer program, stating at paragraph 70:

“However it is implemented, the weights (by which I mean weights and biases) of the ANN are a program for a computer and therefore within the purview of the exclusion”.

And at paragraph 71:

“…ANN implemented inventions are in no better and no worse position than other computer implemented inventions.”

This appears to unequivocally reverse the High Court’s position.

With regards to whether the ANN’s recommendations provided a technical effect beyond being a computer program as such, the Court of Appeal was similarly certain:

“What makes the recommended file worth recommending are its semantic qualities. This is a matter of aesthetics or… are subjective and cognitive in nature. They are not technical and do not turn this into a system which produces a technical effect outside the excluded subject matter”.

In light of the Court of Appeal’s unanimous decision, we expect the UKIPO to swiftly reverse its current practice note so that ANNs are again treated the same way as other computer programs.

We note this this does not mean that ANNs – or computer programs – are no longer patentable in the UK, but that, as before, they should demonstrate a technical effect that either exists beyond the computer per se or enhances operation of the computer itself.

Meanwhile Emotional Perception AI Ltd has sought leave to appeal to the Supreme Court: we will keep you up to date if this occurs.

If you have any questions about this judgement or the topic of AI or computer program, please do get in touch with your regular member of the D Young & Co team.

Case details at a glance

Jurisdiction: England and Wales
Decision Level: Court of Appeal (Civil Division)
Parties: Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Limited
Citation: [2024] EWCA Civ 825
Date: 19 July 2024
Decision: dycip.com/emotional-perception-jul24