Guy Richite, Aldous Huxley and William Blake walk into a bar and between them you would have thought they could come up with a more apposite title for this post…
In any case, after a (longer than expected) wait the UK Supreme Court Judgment in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks is finally here and even on a brief look the key points are clear!
On the patent application itself, the case has been sent all the way back down to the UK IPO hearing officer to think again – so we still don’t know whether Emotional Perception AI will get their patent.
However, on the slightly smaller matter of what happens to the entire framework of assessing software patents at the UK IPO and in the UK Courts there are changes coming.
The Supreme Court has concluded that the venerable Aerotel test, previously used to assess excluded matter at the UK IPO and in the courts “should not be followed”.
Instead, an approach more harmonised with the EPO should be used. The Court has pulled back from simply saying that the EPO Problem and Solution approach should be adopted wholesale. Indeed, they have been careful to say that their judgement:
“does not in our view require UK courts to change their approach to the analysis of what amounts to an inventive step although it may require some modification.”
However, their high-level guidance relies heavily on the EPO Enlarged Board decision G 1/19 and its “intermediate step” assessment of technical and non-technical features. What shape this eventually takes at the UK IPO remains to be seen – but the clear instruction seems to be “more harmonisation”.
Expect to see much more EPO-style argument on technical features and technical effects at the UK IPO!
And what of the question of “what exactly is a program for a computer”? This was arguably the aspect that started this roller coaster ride, when the High Court deemed that the Artificial Neural Network (ANN) at issue was not in and of itself a program for a computer.
Well the Supreme Court has come down on the side that “the ANN constitutes, in essence, a set of instructions to manipulate data in a particular way so as to produce a desired result. In other words, an ANN is a program for a computer.” As such, they appear to endorse the broad view on what a program for a computer is.
Whilst this potential outcome has vexed many in the profession concerned with possible unintended consequences, it remains to be seen whether this actually amounts to a change in the status quo.
No doubt there is much more to be found on a close reading of the judgment – look out for an in depth look from the team here a Boult in the coming days!
