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20 December 2023

Court of Appeal to consider landmark judgment on patentability of AI inventions

The recent decision of the High Court in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) brought about a marked change in UKIPO practice relating to patents for AI inventions as we discussed here. The case at issue focused in particular on artificial neural networks (ANNs), and in response to the High Court decision the UKIPO issued a practice notice on 29 November 2023 confirming that “patent examiners should not object to inventions involving ANNs under the “program for a computer” exclusion”. The implication of this is that the UKIPO’s current approach to inventions in the field of AI appears to be more permissive than it was previously, and also more permissive than the approach of the European Patent Office.

The UKIPO has now confirmed that on 15 December it was granted leave to appeal this High Court decision to the Court of Appeal. However, the practice notice of 29 November 2023 remains in place until such time as the law changes and the UKIPO will continue to examine patent applications in the field of AI on this basis. As a result, while practice may change again once the Court of Appeal issues its judgment, the High Court decision at present remains consequential.

The timeline for proceedings at the Court of Appeal are not yet known. However, previous appeals of this kind have taken of the order of six to twelve months to reach a conclusion.