As artificial intelligence (AI) technology evolves, it is sometimes controversial as to whether new advances can be patented under existing UKIPO rules.
A recent case brought between Emotional Perception AI (EPAI) and UKIPO highlights this tension, which has moved through the appeals process all the way to the Supreme Court. Here, I outline the issues that have been raised and the decisions that have been made so far.
What AI technology is in dispute?
EPAI, founded in 2021, focuses on the development and research in artificial intelligence (AI), machine learning, and artificial neural networks (ANNs). EPAI is more widely known as leading the way for AI innovation in the UK and unlocking patent opportunities for future generations of AI inventors. The case centred on a technique that trains an ANN to interpret content in a manner aligned to human attitudes and mental interpretation.
An ANN is a type of AI that’s structured to represent a collection of connected artificial neurons, designed to model neurons in the human brain. Neurons are layered and connected to each other. Each neuron can process inputs and an output, which can be passed between neurons. The last neuron layer produces a final output in the form of a recommendation or decision. In this case, the final output is a recommendation of a media file.
Background to the case
There is controversiality about the patentability of ANNs. There are several things to consider. Firstly, whether ANNs are a computer and if so, whether they class as a program for a computer (and fulfil the meaning stated in section 1(2) of the Patents Act 1977).
If the ANN fulfils this and therefore classes as a program for a computer, then it is not patentable. If, however, the ANN is a program for a computer and has a technical contribution (and hence falls outside the computer program exclusion), then the ANN could be patentable.
In 2019, Emotional Perception AI (EPAI) Ltd submitted a patent application related to an ANN to the UK Intellectual Property Office (UKIPO) that ultimately assesses similarity and dissimilarity between media files.
The system has been designed to suggest media files by interpreting emotional and perceptual cues, offering tracks aligned with those previously found to be enjoyable. Unlike previous systems that rely on genre or artist similarity, this approach prioritises human perception and emotional resonance, regardless of the genre and individual taste. Recommendations are therefore more attuned to emotional intelligence.
What is the invention?
The invention is divided into two main aspects:
- Emotion-based
The ANN is trained to recognised and characterise music tracks based on human emotion and how they are perceived e.g., happy, relaxing, sad.
Each track is given a set of coordinates and is placed in a ‘semantic space’; a map that locates similar emotions are close together. Two tracks that are semantically similar will have coordinates closer together, such as two relaxing tracks. - Sound-based
The ANN is also trained to analyse the physical and measurable properties of the same two tracks, such as tone, speed, loudness. These tracks are given coordinates and placed on a “property space” and depending on their similarities/differences are given coordinates that reflect this; two similar tracks will be in close proximity to each other.
Over time, the ANN will learn by repetitive correction to align the property space with the semantic space and to determine semantic similarity or dissimilarity from physical characteristics in a music track and to recommend semantically similar music files.
In short, ANN will provide recommended media tracks (such as songs) to an individual user based on the physical properties of the track, instead of relying on categories identified by humans.
The progress of the legal dispute so far:
The case is as follows:
- EPAI applied to the UKIPO in 2019. The UKIPO found that under the Patents Act 1977 (section 1(2)(c)), such programs cannot be defined as an invention and therefore the AI program was not patentable.
- EPAI appealed this decision in 2023 to the High Court who allowed the appeal. The High Court disagreed with the Court of Appeal and therefore found that the ANN was not excluded under section 1(2)(c).
- The head of the UKIPO (the Comptroller-General of Patents, Designs and Trademarks) appealed the High Courts’s decision. The Court of Appeal allowed the appeal, restoring the UKIPO’s original decision.
- EPAI has since appealed this decision to the Supreme Court.
What does this case tell us about patenting AI?
What this case tells us is that for the time being, ANN-based inventions are eligible for patent protection only if they make a technical contribution to the field. This applies if the ANN-based invention:
- carries out or represents a technical process which exists outside a computer,
- addresses or contributes to solving a technical problem lying outside or within a computer,
- is a new way of operating a computer in a technical sense*.
What is still unclear is whether broader recognition for such inventions will occur in the future.
