Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks

A claim involving an artificial neural network is not necessarily a claim to a computer program merely because software is used to train or emulate the network. The court must identify the relevant computer and program analytically. A trained neural network operates at a different level from the underlying software and is not itself a computer program where its learned operation is not a set of instructions supplied by a person.

Where the claimed system identifies and transmits a file selected by technical criteria, the resulting file is a technical effect external to the computer. That effect can prevent the computer-program exclusion from applying. The subjective benefit to the user does not negate the technical nature of the produced and transmitted file.

Emotional Perception AI Ltd appealed from a UK Intellectual Property Office hearing officer’s decision dated 22 June 2022 (BL/O/542/22), refusing grant of a patent application for a system that trained an artificial neural network to identify semantically similar media files and recommend them to a user.

The appeal concerned the computer-program exclusion in section 1(2)(c) of the Patents Act 1977. The court also considered, but did not determine, a proposed alternative argument based on the mathematical-method exclusion in section 1(2)(a). The central issues were whether a hardware or emulated neural network was a computer program, whether the claim claimed the training program, and whether the claimed system made a technical contribution outside the computer.

1. Appeal allowed. The hearing officer’s decision was set aside on the computer-program exclusion issue.
2. The court held that a hardware artificial neural network could properly be treated as a computer for the purposes of section 1(2)(c), even though its learned internal operation was not a conventional set of human-supplied program instructions. A software-emulated neural network likewise runs on a conventional computer, but the emulated network must be distinguished from the underlying software platform.
3. The training stage involved computer programming activity. However, the claim was directed to the use of pairs of files, the training objective and the resulting trained network, rather than to the subsidiary training program itself. Properly construed, the claim therefore was not a claim to a computer program. The exclusion was not engaged.
4. Alternatively, if the claim were treated as claiming a computer program, the contribution included the identification and transmission of a file selected as semantically similar by technical criteria. That was a technical effect external to the computer. The produced file remained a technical thing even though it might produce a subjective benefit for the user. The effect was materially analogous to the external file transfer in Gemstar-TV Guide International Inc v Virgin Media Ltd and qualitatively similar to the alert in Protecting Kids.
5. The court also considered the possibility that the trained network itself was a technical effect capable of preventing the exclusion from applying to an earlier computer program. There was no need to decide the mathematical-method exclusion because that issue had not properly been raised on the appeal.

• High Court (Chancery Division): Appeal from the UK Intellectual Property Office hearing officer’s decision dated 22 June 2022 (BL/O/542/22). The appeal was allowed.