Emotional Perception at the Court of Appeal

I wrote a few months ago about the, in my view, deeply flawed judgment from the High Court in the case of Emotional Perception AI Ltd, which was an appeal from a UK IPO hearing officer decision that refused the application in question for being excluded under Section 1(2) as a program for a computer. There were a few things that were, in my view, wrong about the judgment but the main one was the finding by the judge that an Artificial Neural Network (ANN) was not a computer program. The reasoning by the judge was along the lines of computer programs needing to be written by a human to count as being computer programs, while ANNs were instead generated by training. My opinion at the time on the judge's reasoning was this:

"Although it should not be necessary to point out to anyone reading this with any knowledge of computers at all, the single major flaw in the reasoning of this judgment is that the ANN, whether in hardware or software, would in actual fact be defined by software in the form of computer code defining connections and weights of the ANN and how it operates. It should go without saying that computer software does not need to be written by a human being for it to be a computer program. Indeed, all computer software in the form it is ultimately used, i.e. object code, is not human readable at all but is a string of 1s and 0s that is only readable by a computer. It is still, however, a program for a computer within the meaning of section 1(2) or of Article 52(2) EPC. How the computer program is generated, whether this is by compilation of human-written source code or the result of a training process (or, in this case, a combination of both), is not relevant to whether it is considered a program for a computer. It is also not relevant, according at least to Gale's Application, whether the program is implemented on hardware instead of software. Both are defined by code that defines how hardware operates, either by programming a general purpose piece of hardware or by defining a specific arrangement created or burned into circuit form in hardware".

The IPO appealed the High Court decision on four grounds, the first two of which related to whether the "program for a computer" exclusion was engaged in the case of ANNs. The other two related to whether the mathematical method exclusion applied and whether there was a substantive technical contribution.

At the Court of Appeal, Lord Justice Colin Birss took the lead judgment, with Lord Justice Richard Arnold and Lady Justice Nicola Davies following. Readers will recall that Colin Birss has been involved in cases like this going right back to the Aerotel judgment in 2006, where he was the barrister representing the Comptroller in their appeal. There could not therefore be a more suitably qualified appeal judge for this case. 

Much of the judgment goes into describing the technical detail and background to the claimed invention, which I don't need to go into here. The key part is where the first two grounds of appeal are discussed (paragraph 56 onwards). A few dictionary definitions were referred to regarding what a computer program is, which Birss LJ decided came down to a computer program being "a set of instructions for a computer to do something" (para 61). Importantly, this was consistent with the Aerotel judgment, which referred to a computer program being simply "a set of instructions". 

The applicant's argument attempted to push the idea that a computer program required the involvement of a human computer programmer, but Birss LJ found that was neither relevant nor helpful. Code written by a human would be in the form of a high level programming language, but computers actually worked by running machine code that was generally not human readable. There was no justification for a distinction between code written by a human and code created by a computer. Since an ANN was a computer, whether implemented in hardware or software, the inputs used to define it (such as the connections and weights of the network) amounted to a computer program. It followed that the computer program exclusion was engaged, contrary to what the High Court judge decided. 

Birss LJ also found that the High Court judge erred in finding that the output of the claimed invention, which was in the form of a recommended file (e.g. a music file selection based on a matching process done by the ANN) involved a technical contribution. This was found to be nothing more than the standard transmission of a file representing a recommendation, which the IPO hearing officer found at first instance had no technical effect. Instead, any effect was only in terms of the semantic meaning of the file selected. None of the AT&T signposts were of assistance with this. 

In conclusion, the appeal was allowed and the hearing officer's decision to find the invention excluded from patentability was upheld. We are now back to where we were before, with some clarification now that ANNs are computers and the way they are configured is by way of computer programs*. 

*Edited - see comments below.