That’s Just Not Cricket. Artificial Neural Network Not Patentable In UK

On July 19, 2024, the England and Wales Court of Appeal (the Court) released its decision in Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd, [2024] EWCA Civ 825, finding that a trained artificial neural network (ANN) is unpatentable pursuant to the “program for a computer” subject matter exclusion under section 1(2)(c) of the United Kingdom (UK) Patents Act 1977 (the Act).

The case concerns a patent application by Emotional Perception AI Ltd (EPA) for a system which provides media file recommendations, such as song recommendations, to a user by passing media files through a trained ANN.  The ANN is trained with natural language descriptions of a music file as it might be perceived by a human and the physical properties of the music file, such as the tone, timbre, and speed.  Once training is complete, music files are passed through the ANN and compared to a database from which similar music suggestions are provided to users in terms of human perception and emotion, irrespective of music genre.

A UK Intellectual Property Office (UKIPO) Hearing Officer refused EPA’s patent application on the basis that the claimed invention constituted subject-matter excluded from patentability under section 1(2)(c) of the Act, which excludes from patentability "a program for a computer … only to the extent that a patent or application for a patent relates to that thing as such".  An appeal of the Hearing Officer’s decision found that the patent application for an ANN did not invoke the statutory exclusion from patentability under section 1(2)(c), as no computer program was involved and the exclusion had no application ([2023] EWHC 2948 (Ch)). The UKIPO appealed that decision.

On appeal, the Court reversed the lower court’s ruling and upheld the decision of the Hearing Officer.  The Court concluded that an ANN is a machine which processes information and that, whether it is implemented as hardware or software, the weights and biases of the ANN (i.e. the parameters that are adjusted iteratively during the training process) are a set of instructions for a computer to process information that constitute a “program for a computer” within the exclusion pursuant to section 1(2)(c) of the Act.

The Court emphasized that its decision does not mean ANN-implemented inventions are unpatentable, but that such inventions are “in no better and no worse position than other computer implemented inventions” under UK patent law.  To that effect, an invention claiming a computer program must have a technical contribution to be patentable.  The Court found that EPA’s patent application did not produce a technical effect outside the excluded subject matter.

Summary By: Anna Troshchynsky