The Intellectual Property Office (“IPO”) has updated its guidelines for examining patent applications relating to artificial intelligence.

The update follows the Court of Appeal’s judgment last year in Comptroller-General v Emotional Perception [2024] EWCA Civ 825, which offered helpful clarification of the law relating to the patentability of inventions that employ artificial neural networks (“ANNs”). Overturning the judgment of the High Court, the Court of Appeal held that ANNs were computer programs and, as such, fell under the exclusion from patentability in s.1(2) of the Patents Act 1977 (the so-called ‘computer exclusion’) unless they made a ‘technical contribution’.

The new guidelines from the IPO borrow directly from the reasoning in Emotional Perception, setting out the meaning of a ‘program for a computer’ in section 1(2) as follows:

“The Court held that a computer is a machine which processes information. It held that a computer program (which is the same thing as a program for a computer) is a set of instructions for a computer to do something.

These definitions work together, so one can say that a computer is a machine which does something, and that the thing it does is to process information in a particular way. The program is the set of instructions which cause the machine to process the information in that particular way, rather than in another way.

These definitions mean that the exclusion to a “program for a computer” is not limited to programs for digital computers. Its scope encompasses programs for other kinds of computers, for example analogue computers, artificial neural networks, hybrid computers, and quantum computers”.

Applying this reasoning, the Court held that an ANN – whether implemented in hardware of software – is a computer, and its weights and biases are a computer program. As the Guidelines explain, “the Court concluded that, however it is implemented, the weights and biases of an ANN are a program for a computer and are within the purview of the computer program exclusion”.

However, the Guidelines repeat the findings of the Court that, although the computer exclusion will apply to ANN implemented inventions, this does not mean they are unpatentable. Instead, just like any other computer implemented invention, ANNs will be patentable if they make a ‘relevant technical contribution’. As the Guidelines summarises, “the Emotional Perception judgment simply means ANN inventions are in no better and no worse position than other computer implemented inventions”.

At the end of last year, it was reported that the Supreme Court granted Emotional Perception permission to appeal the Court of Appeal’s judgment. Already the Guidelines have been re-written twice (once following the High Court’s original decision, and then after the Court of Appeal’s judgment). We wait to see if another re-write is necessary once the Supreme Court considers the matter.

To read the new Guidelines, click here.