The UK High Court gave a surprising endorsement for the prospects of protecting artificial neural networks (ANNs) in the UK on 21 November 2023.<\/p>\n\n\n\n
Emotional Perception AI Ltd\u2019s patent application (GB2583455) had been refused by the UK Intellectual Property Office (UKIPO) for being excluded from patentability under the \u201cprogram for a computer\u201d exclusion of UK law.\u00a0 The High Court heard an appeal against that decision, and in a boost to those involved in AI development, has ruled that an ANN is not inherently excluded as a computer program.<\/p>\n\n\n\n
ANNs are the building blocks of many AI advances in recent years.\u00a0 The patent application at issue relates to employing an ANN in the context of improving music recommendations to a user.\u00a0 It is well-known for websites to recommend music to users based on genre preferences.\u00a0 The new development involved assessing properties of the music itself, in addition to its genre categorisation, to learn how to make recommendations based on the audio properties of the music.\u00a0 In other words, it learns to provide a recommendation based on the structure of the music, irrespective of how it has been labelled in terms of its genre, so that a user can be provided with improved recommendations.<\/p>\n\n\n\n
The main question considered by the court was how, if at all, is the computer program exclusion engaged \u2013 where is the computer and where is the program? An ANN is formed of layers, effectively making \u201cdecisions\u201d, and is broadly considered to emulate neuron pathways through the brain. Where an ANN is provided by software, it is coded up to a point, but once trained, the resulting structure of the neural network provides something beyond what has been coded by a programmer. An ANN can also be built from circuitry to provide the necessary pathways, but as the pathways become more complex this becomes impractical to achieve. It is more well known to build ANNs as a computer emulation, in software.<\/p>\n\n\n\n
A key question considered by the court is that if an ANN can <\/em>be built in hardware, then should its emulation in software be considered simply to provide a program, or does it provide something more than that? The court considered that a software-emulated ANN should be considered in the same way as the hardware it emulates \u2013 i.e., if the hardware does not constitute a program, then neither does the emulated ANN.<\/p>\n\n\n\n The court asked \u201cwhether<\/em> the internal training and the subsequent operation of the trained emulated ANN is a computer program\u201d.<\/em><\/p>\n\n\n\n The UKIPO suggested that the program was the process of taking in information (e.g., music files), making assessments of its content, and then outputting the appropriate recommendation. The court did not agree.<\/p>\n\n\n\n The court found that applying initial training objectives to the ANN may be a matter of programming, but that is not<\/em><\/strong> what is claimed overall in this case. In other words, the \u201cprogram\u201d for the purposes of the law is a small part of the overall process that is claimed. Therefore, the claimed material does not relate solely to a computer program, and cannot be considered to be excluded from patentability for that reason.<\/p>\n\n\n\n There remains a consideration of whether the output from the network, and its use, is inherently technical \u2013 and with the present application that was found to be the case.<\/p>\n\n\n\n The application has been remitted to the UKIPO for further examination.<\/p>\n\n\n\n Over the past decade the UKIPO stance on patentability of computer programs has softened, taking its lead from the UK Courts. Following this decision, the UKIPO has issued a practice note to its examiners stating that inventions involving ANNs should not be objected to under the \u201cprogram for a computer\u201d exclusion.<\/p>\n\n\n\n Applicants seeking patent protection for computer-implemented inventions have the choice of pursuing protection through the UKIPO or via the European Patent Office (EPO). The EPO has historically been seen as a preferred venue for software-related applications. However, this decision continues a trend of favourable outcomes for software in the UK, not least in the growth field of Artificial Intelligence.<\/p>\n\n\n\n If you would like advice on protecting software inventions, or innovation relating to AI or machine learning, then please\u00a0contact a member of our team.<\/p>\n\n\n\nFinal Comments<\/h2>\n\n\n\n