Yesterday, in the Emotional Perception appeal, the UK Supreme Court has replaced the Aerotel test for patentability with the “any hardware” approach used by the EPO (as approved by the Enlarged Board of Appeal in G1/19), which could make it easier for inventions concerning ANNs (and other computer-related inventions) to be patented in the UK. Although whether this happens in practice remains to be seen.
The leading judgment, given by Lords Briggs and Leggatt, explains that courts in the UK should follow the decisions of the European Patent Office's Enlarged Board of Appeal, unless convinced they are wrong or beyond the ambit of reasonable difference of opinion. The Court explained that the UK's leading case on patentability – the Court of Appeal's judgment in Aerotel – was decided at a time when there were conflicting authorities from the EPO regarding the patentability exclusions in Article 52(2) EPC. However, the EPO has since rejected the Aerotel approach and the EPO's Enlarged Board of Appeal has approved the use of the “any hardware” approach in G1/19. The Supreme Court held that, going forward therefore, the UK should be adopting the “any hardware” approach when considering the exclusions from patentability under Article 52(2) EPC.
The Court held that an artificial neural network (as used in Emotional Perception's invention) is a set of instructions to manipulate data in a particular way so as to produce a desired result – and so, “an ANN is a program for a computer”. However, the Court held that the Article 52(2)(c) exclusion from patentability for computer programs did not apply. This is because, applying the EPO's “any hardware” approach, the ANN has technical means because it has to be implemented on some form of computer hardware – and so, the subject matter of the claims have technical character such that the ANN is not a computer program “as such”.
A key issue during the appeal was, if the EPO's “any hardware” approach was adopted, whether the UK also had to adopt the EPO's problem-solution approach when considering inventive step. The Supreme Court noted that the EPO case law did not require EPC territories to adopt the problem-solution approach (and, indeed, many do not) and rejected the suggestion that the UK would need to change its approach to inventive step, although left this issue open to “a case where it arises”. The Supreme Court did, however, decide that when considering the “any hardware” approach for patentability, the courts of the UK should also consider the EPO's “intermediate step” – of filtering out the features of the invention which do not contribute to the technical character of the invention – before considering inventive step under the UK's Pozzoli approach. The Supreme Court thought that, given the proceedings to-date had been focusing on the Aerotel test, it was inappropriate for the Court to (i) further define the “intermediate step” in cases involving computer programs, or (ii) analyse the “intermediate step” on the facts of this case – these matters ((i) and (ii)) were referred back to the Hearing Officer for its consideration.
Looking ahead, the Supreme Court's decision may mean it is easier in the UK to avoid the exclusions from patentability for inventions concerning ANNs (and other computer-related inventions), provided they are implemented in some form of computer hardware. However, both prior to and in submissions as part of this case, it had been suggested that the EPO and UK approaches, while different, usually produce the same result in terms of whether a patent is granted for an invention. The Supreme Court's decision today is a bold one that makes a fundamental change to how the validity of patents is approached in the UK, but it will be interesting to see what difference this approach makes in practice.
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