The invention
Emotional Perception AI Limited (EPL)'s invention was an improved system for providing media file recommendations (such as music), where recommendations are made based on human emotions rather than the usual genre classifications (classical, rock, etc.). The invention used labelled training data – for example semantic classifiers, such as "happy" or "sad" to associate the semantic nature of music tracks with their physical properties. The trained ANN could measure the physical properties of music tracks, and use those measurements to identify music tracks that had semantic similarity (and so would evoke a similar emotional response).
The law
Sections 1(2) of the Patents Act (PA) 1977 (implementing Article 52 of the European Patent Convention) provides that anything which consists of a program for a computer “as such” (i.e. and nothing more) is not a patentable invention. The leading case, Aerotel Ltd v Telco Holdings Ltd [2007] RPC 7 (Aerotel), sets out a four stage test for the application of this (and other) exclusions. In summary, the approach involves construing the patent claim to identify the contribution made by the claimed invention, and then assessing whether the invention makes a contribution that is technical and does not fall solely within the excluded subject matter. So, an invention involving a computer program may be patentable if it makes a ‘technical contribution’.
Two key questions
In reaching its decision, the Court of Appeal answered two key questions:
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Is the computer program exclusion to patentability engaged with ANNs?
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If so, does EPL's invention provide a technical contribution?
The Court of Appeal answered "Yes" to Question 1 and "No" to Question 2.
Question 1 – computer program exclusion
Disagreeing with Mr Justice Mann at first instance, the Court of Appeal held that the computer program exclusion (s.1(2)(c) PA 1977) was engaged when considering ANNs.
Lord Justice Birss considered that “a "computer is a machine which processes information" and “a "computer program is a set of instructions for a computer to do something" (§61). On this basis, the Court of Appeal held that an ANN is a computer, and that the weights and biases in an ANN are a computer program since these weights and biases provide a set of instructions to the ANN as to how to process information. It was irrelevant how proximate human programming was (i.e. whether the instructions were created by a computer or a human), the complexity of the problem being solved (both ANNs and conventional computers aim to solve problems that are difficult for humans), how the program came into being (i.e. through training or more direct programming), or how permanent or changeable the programming was (§§64-67).
It also did not matter whether the ANN was implemented using hardware or software – regardless of how it was implemented, an ANN was clearly a machine for processing information, and thus a computer (§§68 & 70).
Question 2 – technical contribution
The focus of this assessment at all three instances was on the step of sending the recommended file to a user, as that was the only step that was external to the computer program.
Lord Justice Birss rejected the first instance finding that EPL's invention made a technical contribution because it "[went] about its analysis and selection in a technical way" and involved the "application of technical criteria" to establish semantic similarity between the files it recommended.
Instead he concluded that the sending step did not amount to a technical contribution because the beneficial effect of providing a “better” file recommendation was not technical but subjective and cognitive in nature. It was not sufficient that the system had gone about its analysis and selection in a technical way, as this was importing the “undoubtedly technical nature of computer systems (including ANNs) into the analysis” (§80).
Commentary
The Court of Appeal's judgment confirms that the weights and biases in ANNs will be treated as computer programs and that, despite its rapid development and deployment, AI is not considered by the Courts to be a fundamentally different technology (yet) to computers such that it can bypass the requirements and exclusions originally established by the EPC for more traditional computing systems.
The Court of Appeal's judgment in Emotional Perception is not all bad news for patentees - ANN-implemented inventions can still be patentable if they make a technical contribution, but they do need to overcome that hurdle. This has been confirmed by the UK Intellectual Property Office who on 25 July 2024 stated that they had updated their examination practice. This now requires patent examiners to treat ANN-implemented inventions just like any other computer implemented inventions, including applying the Aerotel approach to assess whether the ANN-implemented invention makes a technical contribution.
Authored by Katie McConnell, Greig Shuter, and Josh Stickland.
