Neural networks ruling proves the UK is a top AI jurisdiction

A significant ruling of the UK High Court recently found that artificial neural networks (ANNs) are not computer programs and can therefore be patented in the UK.

This judgment will benefit applicants seeking to protect ANNs and signals a more favourable stance towards AI inventions in the UK.

To be patentable in the UK, inventions must be novel and inventive. However, software-based inventions (eg, computer programs) must also demonstrate a technical effect, meaning they must do more than just process abstract or administrative data.

Examples of technical effects include controlling physical processes (such as anti-lock brakes), sharpening a digital image, removing noise from audio data, and encrypting data.

This additional test creates an extra hurdle that applicants must clear to obtain patent protection for software-based inventions in the UK.

Other patent offices have similar tests but some have noted that the UK Intellectual Property Office (UKIPO) has been stricter than other patent offices, such as the US Patent and Trademark Office (USPTO) and the European Patent Office (EPO).

Given that a European patent can give rise to protection in the UK, some applicants will often choose to pursue a European patent over a national GB patent. This strategy now needs to be revisited.

The case

Emotional Perception AI applied for a UK patent for an ANN-based system which analyses music (or other media), and suggests similar music based on human perception and emotion, regardless of the genre.

Under this system, a first ANN projects music tracks into a semantic space based on text descriptions of those tracks. A second ANN projects music tracks into a property space based on properties of the music, such as tone, timbre, speed, and loudness.

The second ANN is trained based on the output of the first ANN, ensuring that music that is semantically similar (eg, clustered in semantic space) is also clustered in property space, and vice versa. In this way, music having an emotional characteristic (happy, sad etc) can be identified regardless of its genre.

The UKIPO initially rejected the patent application, arguing that the ANN did not produce a technical effect. Emotional Perception appealed the decision to the High Court.

In a somewhat surprising and welcome judgment, the High Court overturned the UKIPO’s decision and found that the ANN was patentable. There are many interesting points in the judgment, but two of particular importance for patent applicants are:

(i)      ANNs are not computer programs. The court considered that a software-based ANN emulates (or simulates) a hardware ANN (eg “a physical box with electronics in it”). The court reasoned that a hardware ANN would not be considered to be a computer program and that there “ought to be no difference between a hardware ANN and an emulated ANN”.

(ii)   Even if the ANN in question was considered to be a computer program, the act of selecting specific files (such as a music track) and sending them to users demonstrated a technical effect.  Selection and transmission of files occur outside of the computer and interact with the physical world.

Impact of the ruling

What is particularly interesting about this judgment is that the UKIPO has not—at least as yet—appealed it. Rather, the UKIPO appears so far to have fully embraced the new law and moved quickly to issue a practice note instructing examiners not to raise the ‘program for a computer’ exclusion for inventions involving ANNs.

This marks a significant shift in the way in which the UKIPO deals with AI-based inventions.

In particular, it may have benefits for inventors of ‘core AI’ (eg, improvements in the underlying models) which are not necessarily limited to processing one particular type of data.

At the EPO, it is often necessary to limit patent claims to the processing of specific types of data that the EPO has deemed technical, such as images. This ruling suggests that such restriction may no longer be necessary before the UKIPO.

While the finding on ANNs is naturally generating excitement, the second point above may also have wide implications. It has long been the case in the UK (and Europe) that a technical effect cannot be recognised if it occurs only in the mind of the user.

In this ruling, the court has indicated that just because an effect may occur in a mind of a user, this does not automatically mean that the effect lacks a technical effect.

Comparison with the EPO

Formally, UK patent law mirrors European patent law but over time differences have developed in practice between the UKIPO and EPO.

These differences mean that, in some cases, patents will be granted by one of the offices, but not by the other. Some have observed that the EPO has been more receptive to patent applications for software and AI inventions compared with the UKIPO.

However, this recent judgment, and the UKIPO’s response to it, suggests that the tide may be turning, with the UKIPO now more favourable to AI inventions than the EPO.

AI inventions are not the only instance where the UKIPO is more favourable than the EPO. A relatively recent EPO Board of Appeal decision,  G1/19, made patenting simulations in Europe more difficult than previously.

Following G1/19, simulations, such as when designing components, require a link with ‘physical reality’ (eg, actually making the component). In contrast, UK case law points to a position in which a real world output is not necessarily required.

Recommendations for applicants

In light of this ruling and the UK’s more favourable position on simulations, we recommend that applicants consider filing both at the UKIPO and the EPO. The much lower costs of a GB application and the potential for broader protection in a key market make a GB application an attractive option for applicants seeking European patent protection.

Final thoughts

This High Court judgment and the UKIPO’s acceptance of it is a significant step forward for patentability of ANNs in the UK. It also aligns with the UK government’s stated goal of making the UK a “global AI superpower”.

The message is clear: the UK welcomes innovation in AI.

Mike Williams is a partner at Marks & Clerk and can be contacted at: mwilliams@marks-clerk.com

Steven Pediani is a principal associate at Marks & Clerk and can be contacted at: spediani@marks-clerk.com