Despite the theoretical harmonisation of European and UK patent laws, the UK Intellectual Property Office (UKIPO) has long struggled to deal sensibly with excluded subject matter provisions – especially in relation to computer implemented inventions. Historically, this meant that one could expect computer implemented inventions to be dealt with less favourably by the UKIPO than by the European Patent Office (EPO), causing many applicants to eschew the UKIPO in favour of the EPO for prosecution of their medical analytics inventions. However, a recent landmark decision looks set to change that.
The UK judiciary has often been a voice of reason on excluded subject matter, helping reign in some of the UKIPO’s more wayward decisions and generally arriving at sensible solutions more in line with the EPO’s stance. Now, the UK’s High Court has ruled that a software emulation of a neural network did not fall within the UK’s computer program exclusion to patentability. The case was an appeal by Emotional Perception AI against refusal by the UKIPO of their AI-related invention, which involved using an artificial neural network to make music recommendations based on the similarity of different music files. Importantly, the judge ruled that use of an artificial neural network in that process provided a technical effect and so escaped the exclusion. This appears to open the door to the widespread patenting in the UK of medical analytics inventions that employ artificial intelligence.
The ability to often put accelerated UK applications in order for allowance within six months combined with the global patent prosecution highway network means that the UK could now become the forum of choice for quickly granted medical analytics patents that involve AI – the new rocket docket – and the UK’s exceptionally low official fees also makes this easy on budgets for those wanting to give it a try.
Another factor in favour of the UK as a jurisdiction for protecting medical analytics inventions is the very forward thinking approach that the UK courts have taken in relation to the assessment of infringement in situations where analysis is performed overseas; the late Sir Henry Carr having ruled in the Illumina v Premaitha Health case that what is important is where the invention is being used, and so having some method steps performed by a server in Taiwan was not a barrier to infringement of a UK patent.
As a word of caution however, the UKIPO has appealed the High Court’s decision and we are set to find out the outcome of that in mid-May. There is also a possibility that, in future cases, the UKIPO will instead try to use the ‘mathematical method’ or ‘business method’ exclusions as an alternative attack on artificial intelligence related applications. Time will tell, but for the moment this is a very exciting and promising development.
If you would like to discuss this further, please get in touch with Nick Noble, Tomos Thomas or your usual Kilburn & Strode advisor.