Mark Chacksfield KC and Henry Edwards appeared, instructed by Bruce Dearling of Hepworth Browne, for the successful appellant in this potentially important decision on appeal from the UKIPO. The core issue was one that has not previously come before the Court: namely the correct application of the exclusion under the Patents Act 1977 for ‘programs for a computer … as such’ to AI (and to artificial neural networks (‘ANNs’) in particular).
Sir Anthony Mann’s decision to allow the appeal and remit the application in question for further processing is potentially far-reaching, and suggests that many inventions in the field of ANNs will fall outside of the computer program exclusion.
The patent application in suit claimed a system for providing improved media recommendations to users, based on a novel ANN defined by the manner of its training. In broadest outline the ANN is trained on pairs of media files which have been tagged with text descriptions of their content, and a pairwise comparison of this textual, or emotive, content is used to train a separate ANN to analyse the physical properties of unknown tracks to identify their emotional and musical similarities.
In a decision dated 22nd June 2022 (BL/O/542/22) the UKIPO had accepted that this represented a significant improvement on the identified prior art, but had refused the application as falling within the exclusion relating to a ‘program for a computer … as such’.
Sir Anthony Mann considered the range of UK and EPO decisions, including Aerotel, Comvik, Vicom, Halliburton, Protecting Kids the World Over and Gemstar, and concluded that the patent application fell outside the exclusion for principal two reasons:
First, he accepted the submission that an ANN is not in itself a program for a computer. Whilst an ANN may be implemented in hardware or emulated in software, the ANN lies at a higher level of generality comprising a self obtained structure, but which is not implementing code provided to it by a human. It did not, at the level of generality at which the ANN was claimed, claim a program for a computer at all.
Secondly, and in any event, the Judge held that the system provided a ‘technical effect’ sufficient to avoid the exclusion. He noted that the system involved sending a file containing a recommendation to a remote user (akin to Protecting Kids the World Over and Gemstar) but moreover, and importantly, he held that the ANN resulting from the training process may itself constitute a technical effect (akin to the drill bit designed from the process in Halliburton).