Whilst we await the UK Supreme Court’s decision in Thaler v Comptroller-General of Patents, Designs and Trademarks, including the answer to whether an invention created by artificial intelligence (AI) can be patented, the recent Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch) High Court case has confirmed that use of AI, in particular, of an Artificial Neural Network (ANN), can itself be patentable.
In summary, the patentee was looking to patent an improved system for proving media file recommendations to an end user, including sending a file and message in accordance with the recommendation.
For example, a user of music websites might benefit from the invention by receiving music similar (in terms of human perception and emotion, irrespective of the genre of music) to another musical track which they already know and like.
In this case, the system involves passing pairs of music files through an ANN, which analyses them and teaches itself, via instructions and training objectives set out in a computer program written by a human, how semantically similar or dissimilar they are. This goes on until it is determined that the ANN is getting it right, at which point it is ‘frozen and’ ready to use for arriving at musical recommendations for end users, by identifying files from a database which correspond semantically to a target music file. In other words, the ANN adjusts itself through its training to produce a model which satisfies the training objective set by the computer program.
The UK IPO Hearing Officer refused to grant a patent, holding that the invention claimed in the patent application was “a program for a computer….as such” and therefore excluded from patent protection pursuant to section 1(2)(c) of the Patents Act 1977.
On appeal, the High Court held that the invention was patentable.
In particular, it determined that whilst the ANN ‘learnt’ how to determine whether music was semantically similar or dissimilar via training using a computer program, the presence of a computer program at the training stage was subsidiary to the claimed invention. The emulated ANN might be the result of training from a computer program, but once trained the ANN was not implementing code given to it by a human. The patent application was not for a computer program, as such.
Furthermore, the sending to an end user of a media file and message of recommendation was a “technical effect” external to the alleged computer program.
The High Court’s decision is good news for all those involved in developing and investing in AI.
It is hoped that UK IPO Patent Examiners will take on board the comments made in the judgment and, in light of them, allow through to grant other inventions involving the use of AI.
It remains to be seen whether the Comptroller-General will seek leave to appeal the decision to the Court of Appeal.
For more information, please contact Carl Steele.
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