29 Aug 2024
Following last year’s Supreme Court case of Thaler v Comptroller-General of Patents (2023) which held that an AI machine did not qualify as an “inventor” of a patent (see our article here), the UK courts recently considered another artificial intelligence (AI) case – this time whether an artificial neural network (ANN) was patentable.
We provide below a brief summary as to why this ANN was found not to be patentable:
- An ANN is an AI machine learning model that takes inspiration from the way the human brain is structured. Hardware ANNs may use layered nodes (its artificial neurons) to pass signals (numbers) to other nodes, whilst software ANNs may use software emulating this.
- In this case, Emotional Perception AI developed an algorithm for recommending media files to users (e.g. similar music to music they had listened to, but not just based on genre or what other listeners liked). The invention arrives at the recommendation via its trained ANN and then sends a file and message regarding the recommendation.
- Emotional Perception AI filed for a patent in April 2019, but the application was refused for falling within the exclusion for computer programs “as such”. On appeal, the High Court had ruled in favour of Emotional Perception AI, considering that the ANN should not be excluded from being a patentable invention.
- However, the Court of Appeal decided that the ANN was excluded from being a patentable invention for being a computer program “as such”. This ANN was a machine processing information (regardless of whether it was hardware or software) and its weights and biases were a computer program (its set of instructions so the machine processed information in a certain way). To avoid this exclusion, the ANN needed to have a technical contribution. However, the contribution of improved file recommendations (e.g. music) was held to be more aesthetic, semantic and subjective in nature than technical.
Takeaway Points
- The ruling that this ANN was excluded from being a patentable invention does not mean that another ANN would be automatically excluded, as this decision on the patentability of the ANN invention was fact-specific.
- ANNs are a fundamental feature of the machine learning systems on which modern AI systems are based, so this ruling is of particular interest.
- The ruling is consistent with a UK government consultation in 2022 that concluded no change in the law was necessary in relation to allowing an AI to be named as the inventor of a patent, but it would be kept under review (see here).
- Recent case law demonstrates that patentability of AI technologies is a live area of law and one to watch.
See Court of Appeal case Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd (2024).
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