My colleague, Rebecca Frith and I viewed the Court of Appeal hearing in the Emotional Perception AI case on Tuesday and Wednesday this week. It is the first time that the patentability of AI has been considered at this level by the English Courts.
On Day 1, the hearing began with a detailed explanation by the UKIPO’s counsel of the operation of artificial neural networks (ANNs) and the invention. The UKIPO maintained their position that an ANN is a program for a computer, arguing that the underlying generic or untrained ANN itself is a computer, and that the series of weights and biases which are applied to it represent a computer program essentially because they are what enables it to perform a specified function, analogously to the way that a classical computer program is a set of instructions which enables a generic computer processor to execute a particular function.
Not before a brief interlude to discuss electromechanical jukeboxes, the UKIPO also argued, albeit briefly, that if the computer program exclusion didn’t bite, the mathematical method exception did – seemingly to avoid being “outflanked”, as Arnold LJ put it.
Day 2 began with a detailed explanation by the UKIPO’s counsel as to why, if it was held that neither the computer program exception nor the mathematical method exclusions were applicable, the actual contribution of the invention lay solely in the provision of a media file based on subjective grounds, which does not amount to a technical contribution.
It was then the turn of Emotional Perception’s counsel to present. In line with their previous submissions, their position was that an ANN cannot be separated into components representing a computer and a computer program, i.e. the underlying nodes and links, and the weights and biases which are applied to those nodes and links. A trained ANN is a composite whole, they argued, which is not a computer. And, even if an ANN were held to be a computer, they argued that there is no computer program, because there is no series of “if-then” statements defining its operation. This sparked a lengthy discussion on what exactly a “computer” and a “computer program” are, with references, among other things, to analogue computers, central intelligences, sextants, mechanical adding machines, voltmeters, and even the team of women responsible for mathematical calculations at NASA in the 1960s, portrayed in the film Hidden Figures.
The bulk of the second day was devoted to a discussion of whether the claimed invention made a technical contribution. The respondent noted, in particular, the distinction between the “contribution approach” taken by the Hearing Officer and many UKIPO examiners, in which the technical nature of the “clever bit” of the invention was considered, and the “claims as a whole approach” in which it is determined whether the contribution of the claimed subject-matter as a whole is technical in nature – the approach which is favoured by the Courts. Clarity on this point would undoubtedly be appreciated by UK patent attorneys regularly dealing with computer-implemented inventions. As I understood it, the argument put forward by Emotional Perception was that the actual contribution of the invention is a system or method which uses an ANN to provide an better recommendation of a file such as a music file, rather than simply being the recommendation itself, isolated from the behind-the-scenes machinery which generated the recommendation, and that the contribution as a whole was technical in nature.
There is potential for the outcome of this case to shed of light on a whole range of issues which arise frequently in the handling of patent applications for computer-implemented inventions at the UKIPO – what is a computer program? What is the correct approach for assessing the Section 1(2) exclusions? And perhaps most importantly, are artificial neural networks excluded from patentability for being computer programs or mathematical methods as such? If it is decided that ANNs do not fall foul of these exclusions, it will be interesting to see how the UKIPO apply the law to other kinds of artificial intelligence and machine-learning models.
For anyone interested in watching the hearing, it is available on Youtube here, here, and here.
