The UK Court of Appeal has just ruled that Emotional Perception AI’s neural-network based music recommendation tool should be treated the same as any other computer program under patent law, overturning a High Court’s decision’s finding that unique features of artificial neural networks (“ANNs”) differentiate them sufficiently to allow them to fall outside the default ban on patents for “a program for a computer … as such”. After finding that the tool was a computer program, the Court turned to whether it is nevertheless patentable by virtue of making a “technical contribution” beyond just being such a program. They found the features of ANNs don’t meet the test, and instead the function of the program itself (in this case to recommend a music track) is all that need be considered.
Read the full UK Court of Appeal Decision here.
Emotional Perception’s patent
Emotional Perception AI’s application concerns an ANN-based tool for associating (and thereby recommending) files based on semantic similarity. For example, it would associate musical tracks together based on both their emotional and musical similarity, with songs of the same genre and mood being considered closely related. This is then to be used to select a new track that is sufficiently similar to any given input track. The application claimed a method of making this association and recommendation, and a system which does this. However, nothing in the decision turned on the distinction between these claims to the ANN.
ANNs as Computer Programs
The first part of the appeal covered whether Emotional Perception AI’s claimed ANN was a computer program. The court noted that a computer program could be defined simply as “a set of instructions for a computer to do something”, with a computer simply defined as “a machine which processes information”. The question was whether Emotion Perception’s process fell under this definition.
Emotional Perception AI argued that its claimed ANN was not a computer program, based on the unique features of ANNs compared to standard computer programs. However, applying the definition of a computer program, the court rejected this analysis because
(1) the final form of the process was not defined by a human programmer was deemed to not be a distinction, noting that the final form of computer programs in general is normally computer-generated due to the compilation process applied to the human-written code;
(2) ANNs solve problems which are hard to be fully formulated by a human.
The appeals court also commented that even if the invention was not excluded as a computer program as such, “it may well have been excluded in any event as relating to a ‘mathematical method as such’.” Indeed, a discovery, a scientific theory or mathematical method is also excluded from patentability.
The patent was initially refused by the UK Intellectual Property Office (UK IPO) examiner on the basis that it was for a program for a computer and did not provide for a technical contribution, applying the well-established, and relatively strict, tests for considering software patents. The High Court decision from last November disrupted the UK’s approach to ANN patentability and prompted the UK IPO to revise its guidance related to AI networks and subject matter patentability.
The Court of Appeal’s decision has been read as a return to the status quo that makes it difficult to obtain protection for AI-based inventions within the UK.