Normal service has NOT resumed for AI patents at the UKIPO

Patent Attorney Tom Woodhouse explains the latest developments in the UKIPO's approach to patents for AI inventions.

 

The UKIPO has updated its examination guidance on patent applications involving artificial neural networks (ANNs), following the UK Court of Appeal Judgment in Emotional Perception.

 

The revised guidance notes the Court of Appeal’s characterisation of the weights of a neural network as a computer program, reiterating that an improvement in the weights is thus not inherently technical.  This aligns the UKIPO with the EPO in substance and will make some AI inventions harder to protect at the UKIPO.  Consistent with the EPO, the guidance notes the following:

“The judgment strongly emphasises that this does not mean ANN-implemented inventions are unpatentable. It simply means that ANN-implemented inventions are in no better and no worse position than other computer implemented inventions.”

 

However, the UKIPO and EPO still materially differ in how they treat improvements to the ANN itself:

“25. As with any other computer implemented invention, the AT&T signposts may help examiners decide whether an ANN-implemented invention makes a technical contribution. Examiners should apply the signposts carefully, especially in “better computer” (i.e. better ANN) cases where the invention claims to improve the computer (i.e. the ANN) itself.”

 

Following the Court of Appeal judgment, the UKIPO appears to regard improvements to the neural net itself as inherently technical, and therefore eligible for patent protection. The EPO does not take this view.  It says:

“Artificial intelligence and machine learning are based on abstract mathematical models and algorithms, such as neural networks… [that are] are per se mathematical, whether they can be "trained" based on training data or not.”

 

The EPO characterises a “better ANN” as a “mere algorithmic” improvement, ineligible for patent protection unless the neural net is applied to a specific technical application, or the improvement is driven by specific technical considerations.

 

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in July 2024.