Examination of patent applications involving artificial neural networks (ANN)
Published 29 November 2023
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Summary
1. On the 21 of November 2023 the High Court handed down its judgment in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch).
2. The judgment concerns an invention involving an artificial neural network (“ANN”) and the question whether it is excluded subject matter under the “program for a computer” exclusion of section 1(2)(c) of the Patents Act 1977.
3. The judgment holds the invention is not excluded as a program for a computer. The judgment overturns the earlier decision of the Comptroller in BL O/542/22.
4. Following the judgment, the office is making an immediate change to practice for the examination of ANNs for excluded subject matter. Patent Examiners should not object to inventions involving an ANN under the “program for a computer” exclusion of section 1(2)(c).
The invention
5. The invention provides media file recommendations, for example music track recommendations, to a user by passing music tracks through a trained ANN. In this way the invention makes suggestions of similar music in terms of human perception and emotion irrespective of the genre of music.
6. To achieve this, the ANN of the invention is trained in a particular way. It involves training the ANN by considering both natural language descriptions of a music file as it might be perceived by a human (for example the metadata relating to the music file) and the physical properties of the music file (for example the tone, timbre, speed, and loudness).
7. Once the ANN is trained, music tracks are passed through it to produce outputs which are compared to a database from which recommendations of similar tracks are produced. The recommendations are provided to an end user by sending a file and message.
The judgment
8. The judgment notes that an ANN may be implemented in hardware, for example a physical box with electronics in it (see [14]), or in software where the ANN exists as a computer emulation, for example where a conventional computer runs a piece of software which enables the computer to emulate the hardware ANN (see [18]).
9. The judgment compares hardware and software implementations of an ANN (see [32]-[62]). For hardware implementations, the judgment notes there is no program to which the program exclusion of s.1(2)(c) can apply (see [43]). For software implementations, the judgment holds it is appropriate to look at the emulated ANN as, in substance, operating in the same way as the hardware ANN it emulates. If the hardware ANN is not operating as a program, then neither is the emulated ANN (see [56]).
10. Thus, the judgment concludes an emulated ANN is not a program for a computer (see [58]). As a matter of construction, the claimed invention is not a computer program at all (see [61]). So, the computer program exclusion is not invoked by the claimed invention ([61]).
11. The judgment nonetheless goes on to consider whether the claimed invention reveals a substantive technical contribution (see [63]-[78]).
12. The judgment accepts an argument that moving data outside the computer system, in the form of a file that is transferred, provides an external (outside world) technical effect (see [73]-[74]). When coupled with the purpose and method of selecting the file’s contents, this fulfils the requirement for a technical effect which avoids the computer program exclusion (see [76]).
13. The judgment further holds that a trained hardware ANN is capable of being an external technical effect which prevents the computer program exclusion from applying (see [78]). The judgment holds there ought to be no difference between a hardware ANN and an emulated ANN in this respect.
IPO practice regarding ANNs and the program for a computer exclusion
14. Following the Emotional Perception judgment, patent examiners should not object to inventions involving ANNs under the “program for a computer” exclusion.
15. The Manual of Patent Practice (MoPP) and the office’s guidelines for examining patent applications relating to artificial intelligence (AI) inventions will be updated to reflect the Emotional Perception judgment in due course.
16. Any comments or questions arising from these guidelines should be addressed to either:
Phil Thorpe
Intellectual Property Office
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
Telephone +44(0)1633 813745
Nigel Hanley
Intellectual Property Office
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
Telephone +44(0)1633 814746