News
The Court of Appeal has upheld the UKIPO’s appeal against the Emotional Perception application
19 July 2024
The Court of Appeal has upheld the UKIPO’s appeal against the Emotional Perception application and ruled that the artificial neural networks (ANN) in the invention were considered to be computer programs as such and did not provide a technical contribution.
The invention related to a media file recommendation system which used an ANN to identify and suggest relevant files.
Whilst disappointing that the UKIPO has once again sort to limit protection for software patents and maintain its position as one of the strictest offices on patentability the result itself is perhaps not a surprise. The distinction made in the High Court between a neural network and an artificial neural network was, at best, difficult to follow and the Court of Appeal held that an ANN is considered to be a computer program.
Of greater interest is the suggestion in paragraph 79 of the decision that the UK Courts are more closely following the EPO’s approach as detailed in G1/19 around the technical field of the invention when determining whether or not an invention has a technical contribution. In this case it was held that the provision of recommendations itself was non-technical and therefore there was no technical contribution. This assessment is more consistent with the approach taken by the EPO and in view of G1/19 again not a surprising conclusion.
An interesting comment was made in paragraph 35, “Finally at this stage it is relevant to note that it was not suggested that we could or should depart from the existing English case law in the light of decision G1/19 of the Enlarged Board of Appeal of the EPO on 10th March 2021”. Feels very much like a missed opportunity, especially given the Court of Appeal seemed to be happy to follow the EPO’s approach regarding technical character.
The full decision can be found here: Comptroller – General of Patents, Designs and Trade Marks v Emotional Perception AI Limited – Find case law – The National Archives
Dr Diego Black
Electronics, Computing & Physics group
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP July 2024
