ANNother patent? Has the High Court paved the way for increased patentability of Artificial Neural Networks?

Patenting AI inventions is notoriously complex, with budding patentees having to weave a fine line between various exclusions from patentability. One exclusion that can be particularly problematic in this sector is that for computer programs. However, a recent decision of the High Court may just have made things easier. In Emotional Perception AI Ltd v Comptroller General of Patents, the High Court held that a patent application for an Artificial Neural Network (ANN) relating to an improved system for providing media file recommendations to end users not only did not fall foul of the computer program exclusion, but didn’t even engage it. This decision may pave the way for more ANN related patents to be granted in future and will be welcomed by those in the AI industry. 

The invention in issue

The invention at the heart of this case (developed by Emotional Perception) involved an ANN - a type of machine learning used in some AI inventions. The ANN in question relates to a system which uses music an end user likes to provide music recommendations to them based on how the music makes them feel. This is unique compared to other systems which currently provide recommendations based on genre. 

Importantly, and without wanting to get too far into the technical details of an ANN, the ANN could be used in one of two forms - a hardware ANN (i.e. one which can be bought off the shelf and contains the nodes and layers in hardware form) and an emulated ANN (where a conventional computer runs a piece of software enabling the computer to emulate the hardware ANN).

At first instance, the UK Intellectual Property Office (UKIPO) found that this ANN engaged the computer program exclusion and therefore was not patentable. Unhappy with that decision, Emotional Perception appealed, arguing that no relevant computer program was claimed in their patent application and that therefore the computer program exclusion should not apply. Alternatively, if there is a computer program, it argued that the exclusion should not apply because the patent claim reveals a technical contribution.

What did the High Court decide?

The High Court broke the appeal down into three key questions:

1. Is there a computer for the purposes of the exclusion? 
2. Is there a computer program? 
3. Does the patent claim that computer program? 

The High Court had little difficulty in concluding that a hardware ANN is a computer and that an emulated ANN has to run on a computer. 

Determining whether there was a relevant computer program proved trickier, but ultimately the court concluded that there was – the program which achieved, or initiated, the training of the ANN. However, perhaps surprisingly, no computer program was found to be involved in the operation of the trained ANNs. Counsel for the Comptroller had conceded that the operation of the trained hardware ANN did not involve the operation of a computer program, but argued that the operation of the emulated ANN did. The court disagreed, finding that the emulated ANN operated at a different level from the underlying software and was, for all intents and purposes, operating in the same way as the hardware ANN. That being so, it concluded that the operation of the emulated ANN did not involve the operation of a computer program. 

So, the only relevant computer program for the court to consider was that present at the training stage. And the court found that the patent did not claim that program. As a result, the computer program exclusion was not engaged.

In case it was wrong about this, however, the court went on to consider whether there would have been a technical contribution if there had been a claim to a computer program. And it found that there would - the technical contribution being the transfer of a file specifically identified by the ANN out of the computer system.

Comment

This is the first English case considering whether claims relating to use of an ANN engage the computer program exclusion. The court’s finding that that exclusion was not engaged will be seen as a positive step for those looking to patent similar inventions. And it certainly appears to have moved the dial somewhat - shortly after this decision was handed down, the UKIPO: (i) suspended its current guidelines on the patentability of AI (see our summary here) whilst it considers the implications of this case; and (ii) published new statutory guidance relating to the examination of patent applications involving ANNs, which includes an immediate change to practice with patent examiners being told not to object to inventions involving an ANN under the computer program exclusion. 

However, it is worth noting that the court was only looking at the computer program exclusion here. It wasn’t asked to consider other things that may affect the patentability of the ANN in question, such as sufficiency or other potentially relevant exclusions such as that relating to mathematical methods. So, whilst this may be seen as a positive step forwards, patenting inventions in this space will no doubt remain complex.