25.02.2025
On 30 January 2025, the UK Intellectual Property Office (UKIPO) published an update to the guidelines for examining patent applications relating to artificial intelligence (AI) following the Court of Appeal decision in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2024] EWCA Civ 825.
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The updates are intended to provide clarity on how the ‘program for a computer’ exclusion from patentability should be applied, and to provide more guidance on what is considered a technical contribution for overcoming the computer program exclusion.
Under the UK Patents Act 1977, a ‘program for a computer’ is excluded from patentability ‘as such’. The updates to the guidelines provide more direction on how a ‘program for a computer’ should be interpreted following the conclusion in Emotional Perception, which states that a computer is any machine for processing information, and a program for a computer is a set of instructions for a machine to process information in a particular way. Using these broad definitions, as a means to process information, artificial neural networks (ANNs) are computers. Hybrid computers, analogue computers, and quantum computers also fall within this definition. When the computer is an ANN, the weights and biases cause the ANN to process data in a particular way. Therefore, by the new guidance, the weights and biases in an ANN are a computer program, and so fall within the computer program exclusion.
A further update to the guidelines following Emotional Perception was to confirm that recommendation systems are not a technical contribution. Therefore, when ANNs are used in such systems, the invention falls within the computer program exclusion. Examples of technical considerations given in the guidelines that overcome the exclusion include (as in the previous version) detecting cavitation in a pumping system, measuring percentage of blood leaving a heart, continuous user authentication, and multiprocessor topology adapted for machine learning.
The UKIPO previously published a number of Scenarios applying the guidelines for examining patent applications for AI - GOV.UK. These Scenarios have also been updated to align with the guidance on how a ‘program for a computer’ is defined. Scenarios 13 to 15 have been updated to explicitly state these types of inventions fall within the program for a computer exclusion (these relate to optimising a neural network, processing data by a neural network, and neural network training respectively, which are considered programming activities under the new guidance). Scenarios 16 and 17 have also been updated to reflect the new guidance, highlighting that while the ANN is to be considered as a computer, the technical contribution lies in operating an underlying physical computer in a new way to implement the ANN, and so these scenarios do not fall within the computer program exclusion.
Overall, the updated guidelines provide more clarity on how ‘a program for a computer’ is interpreted in practice, in view of the Court of Appeal Decision in Emotional Perception. Specifically, the exclusion can be regarded as being interpreted relatively broadly. However, Emotional Perception have recently been granted permission to appeal this decision to the UK Supreme Court, and so further updates may be needed in future to align the guidelines with the outcome.
Links
UKIPO Guidelines for Examination - Guidelines for examining patent applications relating to artificial intelligence (AI) - GOV.UK
Court of Appeal Emotional Perception Decision - Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024)
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