Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) (21 November 2023)

In a landmark decision from the High Court of Justice’s Chancery Division Judge Sir Anthony Mann presided over the appeal case between Emotional Perception AI Ltd and the Comptroller-General of Patents, Designs and Trade Marks delving into the intricate legal and technical aspects of patenting Artificial Intelligence (AI)-related inventions, particularly those involving Artificial Neural Networks (ANNs).

Background

Emotional Perception AI Ltd appealed against a decision of the UK Intellectual Property Office, which had refused the grant of a patent for their system. The system in question aimed to provide media file recommendations to users by leveraging an ANN to analyze and categorize music based on human perception and emotion, rather than traditional genres. The crux of the refusal was the application of Section 1(2)(c) of the Patents Act 1977, which excludes “a program for a computer…as such” from patentability.

Legal Framework

The Court structured the legal analysis around the established four-stage Aerotel test and the AT&T 5 signposts to determine whether an invention falls within the excluded matter. These frameworks are pivotal for understanding the legal complexities in patenting computer-related inventions, especially where the boundaries between technical contribution and abstract ideas become blurred.

The Nature of the Invention

At the heart of the appeal was the innovative use of ANNs. Emotional Perception AI Ltd’s system was designed to process inputs, learn from them, and then make recommendations based on a trained ANN. The court discussed the nuances of ANNs, including how they are trained and how they operate, to make an informed decision about the patentability of the system. The court had to construe the claims of the patent application, particularly focusing on whether the claimed invention was a computer program or something more.

Identifying the Contribution

Central to the case was determining the actual contribution of the invention. Was it merely a computer program, or did it provide a technical solution to a technical problem?

Exclusion of Computer Programs

The court deliberated on whether the invention fell solely within the excluded category of a computer program. It examined the nature of the ANN, both in hardware and software forms, and considered if the ANN’s self-learning process constituted a computer program.

Technical Contribution

If the invention was deemed to involve a computer program, did it make a technical contribution outside the realm of the program itself? The court explored the technical effects of the invention, comparing it with precedent cases to determine if it provided a technical contribution that would render it patentable.

 

The Decision

High Court found that the original decision to refuse the patent was flawed. The Court noted that the ANN, particularly when trained and specifically did more than just operate as a conventional computer program.

The ANN provided a technical contribution by way of its ability to recommend files based on semantic similarity, a task that involved complex processing and learning, unlike traditional computer programs.

The court also highlighted the distinction between software and hardware implementations of ANNs, noting that the nature of the ANN’s operation, particularly in hardware form, did not fit neatly into the category of a computer program.

In a landmark decision the Judge found an ANN was not a computer program, even it’s software implementation, reasoning:

[0054-56] “[The Respondents] concession about the operation of a hardware ANN was not accompanied by reasons, but presumably it is because the hardware is not implementing a series of instructions pre-ordained by a human. It is operating according to something that it has learned itself. That, at any rate, would be one justification even if it is not hers. I do not see why the same should not apply to the emulated ANN. It is not implementing code given to it by a human. The structure, in terms of the emulation of uneducated nodes and layers, may well be the result of programming, but that is just the equivalent of the hardware ANN. The actual operation of those nodes and layers inter se is not given to those elements by a human. It is created by the ANN itself.

I do not consider that the single sentence from the application which is relied on by Ms Edwards-Stuart is sufficient for her purposes. It appears in the middle of a number of paragraphs which refer to ANNs. It seems to refer to a different method of achieving the results of the invention which does not involve an ANN. It does not seem to be referring to an emulated ANN – it seems to be referring to something different.

In the light of all this I am not convinced by the Hearing Officer’s lack of conviction. It seems to me that it is appropriate to look at the emulated ANN as, in substance, operating at a different level (albeit metaphorically) from the underlying software on the computer, and it is operating in the same way as the hardware ANN. If the latter is not operating a program then neither is the emulation.”

UKIPO Response

In response to the High Court’s judgment in Emotional Perception AI Ltd v Comptroller-General of Patents, the UK Intellectual Property Office (UKIPO) has made an immediate change to its practice regarding the examination of Artificial Neural Networks (ANNs). Now, patent examiners should no longer object to inventions involving ANNs under the “program for a computer” exclusion of section 1(2)(c) of the Patents Act 1977. This shift in practice reflects the court’s decision that the invention in question is not excluded as a program for a computer, marking a significant change in how ANN-related patent applications are approached​​.

 

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