UK Trends and Developments Contributed by: Nicola Dagg, Jin Ooi, Ray Cheng and Nevyn Fournel, Kirkland & Ellis
AI-based inventions – Comptroller-General v Emotional Perception AI The Court of Appeal recently addressed the issue of the patentability of artificial neural net- works (ANNs). ANNs are structured with lay- ers of interconnected neurons, resembling the organisation of neurons in the human brain. They take a set of input information and use weights and biases as parameters to produce output information. ANNs are the backbone of many machine learning and generative AI systems used in contemporary society. The claimed invention consisted of an ANN con- figured to recommend media files (eg, music recommendations) based on human perception and emotion, irrespective of the genre of music and other people’s tastes. On appeal, the Judges had to decide two ques- tions: • whether the exclusion from patentability of computer programs under Section 1(2)(c) of the Patents Act 1977 applied to ANNs gener- ally; and • if so, whether the claimed invention related to a computer program “as such”, such that it was wholly excluded from patentability under the well-established Aerotel test. The Comptroller had previously answered yes to both questions, and the first-instance Judge had decided no on the first question (and, in the alternative, no on the second question). The Court of Appeal overturned the first instance decision, answering yes to both questions. As to the first question, Birss LJ (Arnold & Nico- la Davies LJJ agreeing) held that an ANN was “clearly a computer” – that is, a machine for processing information – and further that the
weights and biases, which the ANN uses to pro- duce output, function as a program. As to the second question, Birss LJ held that other than the step of sending the recommended file to a user, the whole contribution consisted solely of a computer program. The Court of Appeal also observed, in obiter, that even if the claim was not an unpatentable com- puter program, it might well have been excluded from patentability as an unpatentable mathemat- ical method. Given continued investment and innovation in the development of machine learning and gen- erative AI models, the decision may have broad implications. However, the decision does not spell the death of patents for computer-imple- mented inventions involving ANNs – the Court stressed that “ [v]ery many computer-implement - ed inventions are outside the exclusion and are patentable as a result ”, providing two examples of patented inventions which “ would have been just as patentable if the computer involved had been or used an ANN ”. In December 2024, the UK Supreme Court granted Emotional Perception permission to appeal. The Supreme Court’s decision will pro- vide important guidance on the patentability of ANN-based inventions and the scope of the computer program exception under the Patents Act 1977. Life Sciences, Pharma and Medical Devices 2024 has been another busy year for life scienc- es and medical device patent litigation in the UK, with a number of decisions relating to blockbust- er medicines and medical devices being handed down. This year marked the conclusion (subject to an ongoing appeal) of the highly publicised spat between Moderna and Pfizer/BioNTech.
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