The U.K. Intellectual Property Office has told the U.K. Supreme Court that Emotional Perception AI is attempting to pitch a "Frankenstein test" to write out certain exclusions for patentability that stand in the way of securing a patent for its invention. (iStock.com/bpperry)
"It's a recipe for disaster," Brian Nicholson KC, representing the comptroller-general of patents, said Tuesday. "You are talking about almost every patent case having to work out what this new test is from the bit of paper that my learned friend handed out."
Emotional Perception is looking to register a patent for an artificial neural network, or ANN, that provides media recommendations based on "physical" properties of another song or image.
The UKIPO initially denied the patent, claiming the invention fit the definition of a "program for a computer" under the Patents Act 1977 and therefore should be excluded from patent protection. Now, the issue has been appealed up to the U.K.'s top court.
Counsel for Emotional Perception argued Monday that conventional understanding of the word "computer," as well as case law at the European Patent Office's Board of Appeal, would not preclude its invention from patent protection.
Nicholson opened proceedings Tuesday countering Emotional Perception's characterization of its ANN as a system that relies on "weights and balances" from training data, rather than typical computer code, to function.
The IP office instead sees the weights as essentially instructing the system to give desired outputs, and the process of training the ANN as creating a complex "mathematical function ... which is entirely deterministic," he said.
As a result, such an invention should be precluded from patentability under the exclusions of the Patent Act 1977, the UKIPO said.
Nicholson then criticized Emotional Perception's bid to throw out the tests for whether an invention is excluded from patent protection set out in Aerotel v. Telco.
The alternative test pitched by Emotional Perception involves fully adopting the European Patent Office's test, previously rejected by the U.K. Supreme Court, alongside a test for inventive step referred to as Pozzoli.
This would essentially remove the exclusions from patentability that Emotional Perception is attempting to subvert entirely, Nicholson said.
"We are a million miles away from having a proper contender alternative before this court before it jettisons Aerotel," Nicholson said.
Emotional Perception AI Ltd. is represented by Mark Chacksfield KC and Edmund Eustace of 8 New Square, instructed by Hepworth Browne Ltd.
The Comptroller-General of Patents, Designs and Trade Marks is represented by Brian Nicholson KC and Anna Edwards-Stuart KC of 11 South Square, instructed by the Government Legal Department.
The case is Emotional Perception AI Ltd. v. Comptroller-General of Patents, case number 2024/0131, in the Supreme Court of the United Kingdom.
--Editing by Rich Mills.
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