A trained artificial neural network is not a program for a computer under the United Kingdom exclusion

2023-11-21UK

Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) (21 November 2023) (Sir Anthony Mann), allowing an appeal from the decision of the Hearing Officer, Dr Phil Thorpe, BL O/542/22 (22 June 2022)

Emotional Perception AI Ltd's application claims a system for recommending semantically similar media files, with music as the example. An artificial neural network is trained on pairs of files, each pair carrying a semantic distance derived from natural-language descriptions and a property distance derived from measurable features, and backpropagation adjusts the weights until property distances converge toward semantic distances. The trained network converts a new track into a property vector, finds nearby reference files and sends a recommendation to a user device. The Hearing Officer refused the application as a program for a computer as such under section 1(2)(c) of the Patents Act 1977. Sir Anthony Mann allowed the appeal. The Comptroller conceded a hardware network involves no program, and the judge held an emulated network operates identically, that the trained network "is not implementing code given to it by a human," and that "the emulated ANN is not a program for a computer for these purposes." Training does involve a program, but the claim is not to that program, which is "a subsidiary part of the claim." Alternatively, had the exclusion applied, there was a technical contribution: the file sent to the user is an external technical effect, identified and moved "because it fulfilled certain criteria," and it would not matter if the user never listened to it. Absent a respondent's notice, the mathematical-method exclusion was not considered.

What it changesThe judgment itself says the questions were new, and it is the first time a United Kingdom court has placed a trained neural network outside the computer program exclusion; until an appellate court says otherwise it is the law the Intellectual Property Office must apply. Draft United Kingdom machine learning claims to the reasoning: claim the trained network as a thing defined by its training objective and its inputs and outputs, describe the training stage as the way the network is produced rather than as the invention, and make the output a file or signal that leaves the computer, since the external technical effect was the alternative ground. Avoid claiming the training code or the inference loop as such. This is a first-instance judgment on one application, the Comptroller can appeal, and the mathematical-method exclusion was left open, so a claim should also carry a technical contribution that survives if the program exclusion is restored on appeal.

More on Eligibility of software and AI claims

← All recent developments · Search all developments

Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

This is general information about a published decision, agency guidance or piece of legislation. It is not legal advice and does not create an attorney-client relationship. Items concerning offices outside the United States are reported for information only and are not counsel on the law of those countries.