Emotional Perception AI v Comptroller General of Patents, Design and Trademarks: Supreme Court allows AI Patent appeal
The Supreme Court has thrown a cat amongst the proverbial pigeons of IP law by allowing an appeal by AI firm Emotional Perception challenging the refusal of its patent application for its artificial neural network.
The Facts:
AI company Emotional Perception attempted to patent its file recommending AI. The company submitted for a patent claiming that their AI was unique in its ability, via a neural network machine learning programme, to learn user tastes and recommend them relevant files (whether that be video, audio or text).
Application for the patent for this technology was denied on account of section 1 of the 1977 Patents Act, which has its source in the European Patent Convention. This patent was rejected with specific reference to section 1(2)(c) which notes that “… a program for a computer” is unpatentable.
The judgement:
A key issue at play was the extent to which the previous leading judgement, Aerotel Ltd v Telco Holdings Ltd, was to be followed. That judgement had been made when the approach to be adopted had not yet been settled by the European Patent Office (EPO), and the preliminary issue in this appeal was how to treat the Aerotel decision in light of new rulings from the EPO which rejected the Aerotel decision.
The secondary issue was whether Emotional Perception’s AI falls within the exclusion being a “program for a computer… as such”. The company claimed that their artificial neural network “is not and does not” involve a program for a computer, and thus it would not be exempted from patentability.
With regards to issue 1, the court rejected the Aerotel approach and instead endorsed the approach contained in Duns (T154/04) and endorsed by the EPO.
With regards to issue 2, whilst the court agreed with the Court of Appeal that an artificial neural network (ANN) is a “program for a computer”, the lower court’s reasoning – that a computer is any “machine which processes information” – was too broad to be acceptable. Having accepted that the ANN was a computer program, it then had to decide whether Emotional Perception’s claims fell under the scope of exclusion for “programs for computers… as such”. The court, adopting the EPO’s “any hardware approach”, decided that “it is beyond dispute that… the claims are… not excluded”. Despite accepting the EPO’s any hardware approach, the court highlighted the importance of the “intermediate step”, which recognizes that a claim might legitimately consist of both technical and non-technical features and requires a holistic approach to the claim to identify every aspect which contributes to “invention”.
The parties:
Chambers ranked barristers appeared for both the appellants and respondent. Our ranking table for Intellectual Property can be found here: Intellectual Property, London (Bar), UK Bar | Chambers Rankings.
The Appellant: Emotional Perception AI was represented by Mark Chacksfield KC and Edmund Eustace of 8 New Square.
The Respondent: The Comptroller General of Patents was represented by Brian Nicholson KC and Anna Edwards-Stuart KC of 11 New Square.