UK Supreme Court Issues Milestone Judgment for AI and Software Patentability

The UK Supreme Court today issued a judgment in Emotional Perception v. Comptroller General of Patents, Designs and Trade Marks that changes how courts and the UK Intellectual Property Office assess patent eligibility for computer programs and artificial intelligence inventions. The court held that the four-step test from Aerotel Ltd v Telco Holdings Ltd should no longer be followed. It directed examiners and courts to apply the approach from the European Patent Office Enlarged Board of Appeal decision in G 0001/19 instead. Under the new guidance, if a claim involves the use of any hardware, article 52(2) of the European Patent Convention is at least prima facie inapplicable. The court found that the artificial neural network at issue in the case does not comprise a program for a computer "as such" and therefore qualifies for further assessment on novelty, inventive step and industrial application. The UKIPO hearing officer must now reconsider whether the technical features of the invention involve an inventive step. Jonathan Ball of Norton Rose Fulbright described the ruling as a highly significant moment for UK patent law. He said it brings the UK in alignment with European practice by adopting an any hardware approach for determining when a computer program could be patentable. Michael Neilsen of EIP said the scope of the decision is much wider than many anticipated. He noted that the immediate consequences will be felt in patent applications currently on file at the UKIPO, where the approach to assessing excluded subject matter will change immediately, and that questions remain about reconciling the feature-by-feature assessment with the UK's holistic approach to inventive step.