Patenting Artificial Neural Networks – Going Down the PANN?

In an increasingly data-driven world, it is crucial for companies to process data effectively and efficiently to streamline business operations.

Therefore, the need for innovative AI inventions has arguably never been greater. Considering that the UK’s AI market is projected to thrive in the coming years, with an expected annual growth rate of 26% and a market volume of over £19bn by 2030, it is equally important to ensure that complex AI creations are adequately protected by UK patent law.

Understanding and applying artificial neural networks

At the heart of these data-crunching AI solutions are artificial neural networks (ANNs). ANNs are essentially computational systems which can process complex data uniquely using ‘neurons’, recognising patterns undetectable by humans, constantly training themselves as more data is processed. This enables ANNs to learn independently and make decisions based on what has been learned from working through the data, in a way that is similar to how biological networks within the human brain function.

UK businesses use AI solutions for data management more than any other use case, so ANNs have an important role to play for many companies who handle large amounts of data. For example, ANNs can help marketing companies by analysing social media behaviour among consumers to improve brand engagement. Conversely, ANNs can also aid financial analysts in making forecasts by processing large volumes of historical market data.

While the significance for ANNs and data-analysing AI systems for modern businesses is clear, creators of these complex systems may be disappointed to know that the UK courts have not considered them to be any different from a regular computer program in terms of patentability.

Emotional Perception AI – A case study

The Court of Appeal’s judgement in relation to a patent application submitted by Emotional Perception AI for one such ANN-based invention provides a recent example of an important legal development in this field. Emotional Perception AI developed a system which provides media file recommendations, such as suggesting songs to users of a music streaming site. In contrast to other AI systems which may use genres, categories or user-curated playlists to make suggestions, Emotional Perception AI’s invention uses ANNs to ultimately recommend music based on human perception and emotion. It learns to analyse and extract factors such as timbre and tone between different tracks to suggest other music files which aim to generate a similar emotional response from the user.

Emotional Perception AI filed a patent application for their invention, which was initially rejected by the UK Intellectual Property Office (IPO) for falling within an exclusion for computer programs under the Patents Act 1977, before being reversed by the High Court in November 2023. However, earlier this year, the Court of Appeal overturned the High Court’s decision, concluding that Emotional Perception AI’s invention falls within the computer program exclusion cited by the IPO. While this does not mean that ANN-based applications are unpatentable, it presents an extra degree of difficulty, putting the onus on inventors to prove that their creation makes a technical contribution.

Technical contribution

There is no defined rule for what exactly constitutes a technical contribution, but previous IPO guidelines suggest it may include solving a technical problem within a computer or performing a technical process existing outside a computer. However, in response to the judgement of the Court of Appeal, the IPO has temporarily suspended its guidelines for examining AI patent regulations, so we can expect the guidance on this point to be updated in the near future.

Navigating the future

Much like the very inventions they have been tasked with assessing, our courts and patent offices are still learning to adapt to rapid advancements in AI, as illustrated by the contrasting judgements on Emotional Perception AI’s patent application. Therefore, there is still hope for creative AI companies that the legal landscape will evolve with time and afford adequate protection for ANN-based creations, fostering an environment which encourages further innovation.

The Birketts view

In the meantime, companies seeking to patent any such inventions should seek specialist IP advice to ensure that the technical contributions of their AI systems are well documented, while keeping a watchful eye on any further guidance issued by the IPO. Time and effort spent in considering the patentability of ANNs will almost certainly not be wasted, bringing a whole new meaning to ‘going down the PANN’!