Recap of Emotional Perception AI v. Comptroller-General of Patent, Des

In brief, the patent application (GB1904713.3) of Emotional Perception AI describes a system and method for providing media file recommendations, such as music file recommendations, to a user using a trained artificial neural network (ANN). The recommendations are sent to the user by sending a message and a file.

Examination proceedings

During examination proceedings, the Examiner maintained that the invention was excluded from patentability under Section 1(2) of the Patent Act 1977, because it related to a mathematical method and a program for a computer as such.
After several rounds of examination, an Examination hearing (O/542/22) took place and a Decision was handed down in June 2022.
In the Decision, the Hearing Officer used the four-step approach of Aerotel/Macrossan^[1]to determine whether the invention fell within an exclusion.
On the mathematical method exclusion, the Hearing Officer concluded that “although an ANN and a method of training an ANN per se is no more than an abstract mathematical algorithm, its specific application here as part of a file recommendation engine is […] enough to dispense with the mathematical method as such objection”.
However, the hearing officer held that “the invention falls solely within the matter excluded under section 1(2) as a program for a computer as such”.
The application was refused.

Appeal at High Court of England and Wales

The decision of the UKIPO was appealed by Emotional Perception AI at the High Court (EWHC 2948) and the judgement was handed down in November 2023.
The Judge structured the judgement by first considering three questions:

1. “Where is the computer for the purposes of the exclusion?”

The Judge considered that in the case of a hardware ANN, the ANN is the computer and in the case of an emulated ANN, the computer is the thing that the ANN is run on.

2. “Where is the program?”

In the case of a hardware ANN, the UKIPO conceded that there is no computer program. Whilst for an emulated ANN, the Judge considered that the ANN can be decoupled from the underlying software on the computer and therefore the ANN is not a program for a computer.

3. “Is the invention a claim to a computer program at all?”

The Judge considered that the claims do not seem to claim the program involved in the training stage of the ANN, but rather claim the trained ANN. With regards to technical effect, the Judge considered that “What is considered special is using pairs of files for training, and setting the training objective and parameters accordingly. [Therefore,] the actual program is a subsidiary part of the claim and not what is claimed.”

On answering the above three questions, the Judge concluded that the claim is not to a computer program at all and therefore the exclusion is not invoked.
The Judge went on to check the above conclusion by assuming that the invention is excluded from patentability and used the four-step Aerotel test to assess the technical contribution of the invention.
The Judge considered that sending an improved recommendation message, such as a music file recommendation, is a relevant technical effect and prevented the exclusion from applying.
Additionally, the Judge considered that as a result of the invention a file has been identified and moved because it fulfilled certain criteria. Therefore, it is not just any old file; it is a file identified as being semantically similar by the application of technical criteria which that system has worked out for itself. So, the output is of a file that would not otherwise be selected. The possible subjective effect on the user was not considered relevant.
The appeal was allowed.
Following the High Court appeal, a change was made in UKIPO practice regarding ANNs and the program for a computer exclusion and patent examiners were told not to object to inventions involving ANNs under the “program for a computer” exclusion.

Appeal at Court of Appeal

The decision of the UK High Court was appealed at the Court of Appeal by the Comptroller-General and heard in May 2024.

We are expecting the judgement from the Court of Appeal to be handed down imminently - stay tuned for the details!

References

^[1] Aerotel Ltd v Telco Holdings Ltd and Macrossan’s Application [2006] EWCA Civ 1371; [2007] RPC 7

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Madeleine Georgopoulou

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