A trained neural network is a computer program in the United Kingdom, and recommending a similar file is not technical

2024-07-19UK

Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024) (Birss LJ, with Arnold LJ and Nicola Davies LJ agreeing), allowing the appeal from Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) (Sir Anthony Mann) and upholding the Hearing Officer's decision BL O/542/22 (22 June 2022)

Emotional Perception's application claims a system that recommends media files: an artificial neural network is trained on pairs of files so that distances between its output property vectors converge toward distances between semantic vectors derived by natural language processing from text descriptions, and the trained network produces an ordered list of similar files and sends them over a network to the user's device. The Hearing Officer refused the application as a program for a computer as such under section 1(2) of the Patents Act 1977; Sir Anthony Mann reversed, holding that a trained network is not a program and its output is technical. The Court of Appeal allowed the Comptroller's appeal. Birss LJ held that "a computer is a machine which processes information," that an artificial neural network in hardware or software form is a computer, and that "the weights (by which I mean weights and biases) of the ANN are a program for a computer." Training "is, in effect, part of the creation of the program" and "makes no difference," so network inventions are "in no better and no worse position than other computer implemented inventions." Applying the Aerotel approach, the court found no technical contribution: "What makes the recommended file worth recommending are its semantic qualities," which "is not a technical matter at all." The mathematical method ground was left undecided.

What it changesUnited Kingdom practice for neural networks returns to the ordinary computer-implemented-invention test, which is the European Patent Office's position in other words: the model is a program, the weights are a program, and the question is whether the claim produces a technical effect outside the computer or in how the computer itself works. A recommendation, a ranking, a classification by meaning or a piece of generated text is not that effect. For a United Kingdom or European filing on a model, the claim should end in something the tribunal can call technical, a control signal, a measured physical quantity, a corrected sensor stream or an improvement in the machine's own memory, bandwidth or latency, with the specification explaining the mechanism of that improvement. Claims whose only output is a better selection should be given a United States-only budget. This is a Court of Appeal decision and the Supreme Court has not addressed neural networks, so hold pending United Kingdom applications on the same reasoning while the applicant's options run.

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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.

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