Comptroller General of Patents v. Emotional Perception AI Limited [2024] EWCA Civ 825
Brian Nicholson KC and Anna Edwards-Stuart KC represented the Comptroller General of Patents, Designs and Trade Marks (“the Comptroller”) before the Court of Appeal in this important decision concerning the patentability of artificial neural networks (“ANNs”) having regard to the exclusions under s.1(2) of the Patent Act 1977 (as amended) (“the Act”).
Overturning the decision of Sir Anthony Mann (on appeal from the UKIPO), the Court of Appeal (Nicola Davies, Arnold and Birss LJJ) accepted the Comptroller’s submissions, holding that ANN-implemented inventions involve a computer programs (whether implemented in dedicated hardware or by software simulation) and, as such, engage consideration of the ‘computer program…as such’ exclusions under s.1(2) of the Act. The Court went on to agree with the Comptroller as to the consequences, pointing out that it does not mean that ANN-implemented inventions are unpatentable. As Birss LJ explained: just as many computer implemented inventions are outside of the exclusion and are patentable as a result, the fact that the exclusion is engaged “simply means that ANN implemented inventions are in no better and no worse position than other computer implemented inventions”.
In the second part of the appeal, applying s.1(2) of the Act to Emotional Perception AI (“EPAI”)’s patent application, the Court again agreed with the Comptroller, overturning Sir Anthony Mann and restoring the decision of the Hearing Officer that EPAI’s patent application is excluded from patentability.
The Court of Appeal refused EPAI’s application for permission to appeal to the UK Supreme Court (“UKSC”). EPAI is entitled to petition the UKSC to grant permission to appeal.
Brian Nicholson KC and Anna Edwards-Stuart KC represented the Comptroller General of Patents, Designs and Trade Marks, instructed by Government Legal Department.