Good news for AI inventions in the UK
Emotional Perception AI Ltd vs Comptroller-General of Patents [2023] EWHC 2948 (Ch)
The High Court has issued a long-awaited decision regarding whether an invention relating to the training of an artificial neural network (ANN) should be excluded from patentability under section 1(2)(c) of the Patents Act as a computer program “as such”. Sir Anthony Mann found that the UKIPO was wrong to reject Emotional Perception’s patent application as being related to excluded subject-matter, potentially paving the way for many more AI related inventions being granted at the UKIPO.
The patent application in question relates to a system and method for providing a media recommendation to a user (e.g., a suggested music track) using an ANN. The crux of the invention lies in the training process used by the ANN to match a written description of a media file with other physical properties of the file, so that once trained, the ANN can match media files that are “semantically similar” based on their physical properties. The trained ANN can then take a media file as an input, apply its trained model to the file to match it with similar media files stored in a database, and provide an end user with a media file recommendation. The claimed ANN could be run on dedicated hardware as a “hardware ANN” or emulated on software.
The UKIPO’s position was that if the invention had been limited to a hardware ANN, it would not have invoked the computer-program exclusion. So, it was the software emulation of the ANN that was the cause of the rejection.
Interestingly, Sir Anthony Mann agreed with the appellant that the software emulated ANN could be “decoupled” from the underlying software on the computer needed to run the emulation. It was decided that the emulated ANN should be treated in the same way as a hardware ANN. The hardware ANN has physical nodes and layers, and the software emulation of the ANN has equivalent virtual nodes and layers. Although the emulated nodes and layers may be the result of programming, rather than configuring the physical hardware, the operation of the emulated ANN is the same as the operation of the hardware ANN. Since the hardware ANN was not determined to be a computer-program, neither should the software emulated ANN.
Sir Mann also took the view that the identification of a similar media file and provision of the identified file to a user is a technical effect external to the computer, as was the production of a trained hardware ANN. Both of these external technical effects pointed to the invention falling outside of excluded-subject matter objection because the invention would have satisfied signpost (i) of the AT&T signposts even if the claimed invention had been considered to encompass a computer program.
This decision looks to be good news for applicants patenting AI inventions in the UK and is likely to mark the beginning of a shift in attitude at the UKIPO. The UKIPO is already reviewing the decision and has temporarily removed the Guidelines on Examining AI Inventions from their website pending consideration of the judgement.
The High Court decision can be found here and the UKIPO decision that was the subject of the appeal can be found here BL/O/542/22.
