An Artificial Perception: Court of Appeal overturns High Court and finds AI neural network is excluded from patentability as a computer program

The Court of Appeal (England and Wales) has set out a helpful analysis of the application of well-established software patentability rules to new and innovative AI inventions in its decision in Comptroller-General of Patents, Designs and Trade Marks -v- Emotional Perception AI (19 July 2024).

In a departure from the High Court's ruling, the Court of Appeal held that an artificial neural network (ANN) is a 'computer' within the meaning of the Patents Act 1977 and that the weights and biases generated during AI training processes are 'computer programmes'. Having done so, the Court of Appeal proceeded to apply the software patentability exclusion to the ANN implemented invention in question, finding that the invention fell within the exclusion and was not patentable.

The Court of Appeal's decision highlights that while AI inventions, such as artificial neural networks, can exhibit complex functionalities, they must demonstrate a tangible technical effect as opposed to an effect that is merely cognitive, subjective or aesthetic in nature to fall outside the software exclusion and qualify for patent protection.

Peter Dalton, a partner in the HSF London IP & Cyber team, commented: "The decision does not mean that AI inventions are unpatentable in the UK as a rule, and the Court recognised that "very many computer implemented inventions" are patentable. However, going forward (and subject to any further appeal), AI developers will need to consider and identify a technical effect arising from their invention if they wish to secure patent protection in the UK".