The Topline

"The High Court's allowance of an appeal in the case of Emotional Perception AI Ltd v Comptroller-General of Patents, Designs, and Trade Marks advances the legal debate around AI patentability under the UK intellectual property regime."

– Alan Harper, Partner, Intellectual Property, Trade Marks & Design

The UK High Court has allowed the appeal of a patent application by Emotional Perception AI which had previously been refused by the UK Intellectual Property Office (UKIPO).

The claimed invention is a system which uses AI to provide media recommendations using an artificial neural network (ANN).

The judgment, handed down by Sir Anthony Mann, adds to the ongoing discussion around the patentability of AI and will have an impact upon future patent applications relating to AI.

The judgment

What was the patent application for?

The application in question is for a system which provides media file recommendations to users based on the training of an ANN and works differently to most common search algorithms.

The system would suggest similar media, such as music, based on the 'human perception' of the music rather than the genre.

The ANN would categorise the music based on the emotions it evokes and how semantically similar it is, rather than categorising music by rhythm or tempo.

The original decision

In June 2022, the UKIPO acknowledged that the invention was a significant improvement over the prior art but refused the patent application on the basis that it was a 'program for a computer' and therefore excluded from patentability under the Patents Act 1977.

The grounds for appeal

However, Sir Anthony Mann disagreed with the UKIPO's decision and allowed the appeal on the basis of two key points.

Firstly, he set out that the ANN "is not implementing code given to it by a human" and accepted the applicant's submission that a trained ANN is not a 'program for a computer'.

Secondly, he explained that the system's media file recommendations are identified by the "application of technical criteria which the system has worked out for itself". He held that the trained neural network is "capable of being an external technical effect" and therefore the claim as a whole could not fall under the subject-matter exclusion given by the UKIPO.

What does this mean for AI patentability?

This decision is positive news for those looking to obtain patent protection for AI inventions and marks an exciting development in the area.

However, the practical consequences of this case remain unclear and the decision should still be approached with caution.

The impact of this decision will depend on how the UKIPO respond to the judgment and how they update their guidance as a result. Currently, the UKIPO have not clarified whether they will appeal against the High Court decision and it is unclear what the decision means for current and future applicants.

In the interim, the UKIPO has temporarily suspended its guidance for examiners on AI patent applications pending consideration of this case.

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