UK Supreme Court to hear another important AI patent case

The UK Supreme Court has confirmed to Out-Law that leave to appeal has been granted in the case between Emotional Perception AI Ltd (Emotional Perception or EPL) and the UK’s Intellectual Property Office (IPO). Dates for hearings before the court have yet to be fixed.

This time last year, in a different case, the UK Supreme Court ruled that AI systems cannot be the owner of, nor be transferred, patent rights.

Emotional Perception has developed a system that it claims makes music and other media recommendations to users in an improved way, based on how the users have been categorised by trained artificial neural networks (ANNs) – a form of AI system that the High Court characterised as “a black box which is capable of being trained as how to process an input, learning by that training process, holding that learning within itself and then processing that input in a way derived from that training and learning”.

Emotional Perception applied for a UK patent for its system, but the hearing officer at the IPO considered that the system as a whole was a computer program. Computer programs are excluded from patentability under UK patent law – unless they can be shown to have made a ‘technical contribution’ to lift them out of that exclusion. The hearing officer considered that Emotional Perception’s system’s provision of “semantically similar file recommendations” was “not technical in nature”, meaning he considered it was excluded from patentability on the basis that it was computer software.

Emotional Perception challenged the hearing officer’s decision before the High Court, which ruled in its favour. It considered that Emotional Perception’s system was lifted out of the computer program exclusion since it produces an output – a file – that “would not otherwise be selected”. That decision prompted the IPO to update its guidelines for examining patent applications relating to AI inventions.

However, the Court of Appeal in London overturned the High Court’s decision earlier this year, first determining that ANNs constitute computer programs before going on to assess that the contribution made by EPAI’s system was an aesthetic, not technical, one.

Emotional Perception’s patent application will now be considered by the Supreme Court. Its interrogation of the way ANNs operate has the potential to shape how welcoming the UK is viewed as being to AI-related innovation, according to patent experts at Pinsent Masons.

“As the Court of Appeal noted, ANNs are the backbone of the machine learning systems on which modern AI systems are based,” said patents expert Mark Marfé of Pinsent Masons. “It is therefore welcome that this case will now be considered by the Supreme Court which, it is hoped, will provide some general guidance to assist patentees of future, similar cases including the interplay between hardware and software in such cases.”

Patent attorney Harry Muttock, also of Pinsent Masons, added: “How the courts define a computer or program for a computer is pivotal to this case – what the High Court judge ruled in that regard was at slight odds with earlier case law in the so-called Aerotel case. The Supreme Court’s interpretation of that case law and the underlying definitions could have wide ramifications for the patentability of other AI systems in the UK.”