Daaci - The final Aerotel test

As we all now know, the Aerotel test for assessing patentability in the UK is no more. We are currently waiting for the UK IPO to reassess the application from Emotional Perception following the Supreme Court remitting the case to the Hearing Officer, who first dealt with the application in 2022. Last month's decision in the case of Daaci Limited's Application (BL O/0086/26) was the last time the test will have been used in a decision from the Hearing Officer at the UK IPO. The decision is therefore largely of academic interest, but there are a few aspects that intrigued me, the main one being that the same attorney that handled the Emotional Perception case was also representing the applicant in this case. 

Daaci Limited (previously named Heresy Artificial Intelligence Limited) is a curious entity, and with an interesting patenting history in the UK. They have had some success in patenting inventions relating to automatic musical compositions in the US, with 6 granted US patents to their name so far. Given the subject matter, you might expect their success rate in the UK to be not great. They did, however, manage to get 3 patents granted in 2024, apparently on the back of the High Court judgment in Emotional Perception (which issued in November 2023), but surprisingly all 3 have since ceased due to non-payment of renewals. The company nevertheless continued to pursue two other applications, one of which was decided on last month. Another is currently awaiting a hearing following a request that the case be heard after the Supreme Court decision. 

There are another couple of curious features about Daaci Limited. One is that they have stated their IP assets to have a value of over £12 million, although the company is currently in liquidation. The company is also stated to be a "sister company of Emotional Perception AI Limited" (according to the representative), presumably because they share a company director in the form of Philip Walsh. 

The decision last month related to GB2104696.6. As with the other applications mentioned above (which are divisionals of this one), the application related to a system and method for automatically generating a musical composition based on a "briefing narrative describing a musical journey with reference to a plurality of emotional descriptions for a plurality of musical sections along the musical journey". The system involved a database of musical artefacts that were reduced to constituent elements (termed ‘form atoms’) and linked together based on stored rules to assemble a composition having regard to the briefing narrative and provided as an audible musical output. 

Figure 3 of the patent application. 

As one might expect for such an invention, the examiner objected that the claimed invention was excluded from patentability as being a program for a computer as such. Following the Aerotel test, the examiner assessed the contribution as a system for automatically generating musical compositions using form atoms, which allowed a user to generate a musical composition having musical features such as melodies, harmonies, chords, and rhythms that reflected and conveyed textural descriptions of a supplied briefing narrative. This contribution was found not to be technical. 

Before the Hearing Officer, the representative argued that the invention contained elements that were not merely a computer program but were functional and interacted with physical elements, such as the database storing novel structures as code. The representative also argued that the ‘form atom’ feature was not a computer program per se and the claim as a whole did not therefore relate to a program for a computer as such. A similar type of argument was made by the same representative in the Emotional Perception case, where the arrangement of an ANN was argued not to be excluded under the computer program exception. This argument had some success at the High Court before an obviously very inexperienced judge, but was knocked down at the Court of Appeal and the Supreme Court. 

The Hearing Officer, with knowledge of the Court of Appeal decision, disagreed on this point, and referred to the caselaw in this area that dated right back to Merril Lynch [1989] RPC 561, in which Fox LJ considered that it could not be permissible to patent an item excluded by section 1(2) under the guise of an item which contained it (a similar point was made in Gale's Application [1991] RPC 305). It was instead decisive what contribution the invention made to the known art, for example a substantial increase in processing speed as in Vicom (T 208/84). 

The applicant also argued that the assembly of unique pieces of music was a technical process and that the invention was in the area of musical technology, referring to Article 27 of the TRIPs Agreement, which states "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application". The hearing officer dismissed this argument too, considering that the Aerotel test did not exclude entire fields of technology but stepped through a careful analysis to assess each invention on its merits and determine whether the invention was anything more than those integers excluded under the Act. Incidentally, how this argument was thought to have the remotest chance of success, given that TRIPs dates back over 30 years and all arguments about its effect on patentability in the UK and Europe (which were effectively zero) had been settled at least 20 years ago, is quite beyond me. 

In assessing the contribution and how the invention worked, the Hearing Officer considered that the claimed invention allowed a user to generate multiple alternative compositions quickly, resulting in a more effective way of providing a system to generate a musical composition. The key question was, in analogy with Vicom, whether this composition of music based on an emotional briefing was a technical process. The output had a subjective and cognitive effect on the user in the manner of the aesthetics or emotional impact of the music. This was not considered to be a technical effect outside of the computer but instead was the automation of a creative process. The invention was considered to be a sophisticated and clever way of encapsulating the sort of knowledge, rules and ‘ear’ that a creative composer may possess, but the process being emulated was a creative one that was not technical in the sense that a creative process itself was excluded. The claimed invention was found to fall solely within excluded matter and was not technical. The application was therefore refused.

Given how applications of this type have been assessed over the years using the Aerotel test, the outcome is not at all surprising or unusual. How would such an application fare in light of the abandonment of Aerotel and with the (as yet officially undefined) new test that should instead incorporate the concept of technical character from the EPO problem-solution approach? Readers will know that I have proposed just such as test, which involve six steps so that the EPO approach can be combined with the UK Pozzoli approach to inventive step. The following is an abbreviated attempt to figure out how the application might be assessed, and if it would make any difference to the outcome. 

Claim 1 of the application in the form placed before the Hearing Officer is as follows:

1. A computer-based auto-generative composition system, comprising:

an input coupled to receive a briefing narrative describing a musical journey with reference to a plurality of emotional descriptions for a plurality of musical sections along the musical journey;

a database comprising a multiplicity of Form Atoms having self-contained constructional properties within metadata associated with the Form Atom and where the self-contained properties are derived from an historical corpus of music and where each Form Atom has:

a generative set of heuristics that support generation of a set of chords in a chord scheme or many different sets of chords in the same or different tonics that achieve the same form function and which thus have similar associated emotional/musical connotations, and heuristics that space out temporally any number of generated chords for any given length of musical time;

a tag that describes compositional heuristics of its respective Form Atom;

a chord list in a local tonic where the chord list defines branching structures giving options for generation of different chords from the local tonic, and a progression descriptor in combination with a form function that expresses musically one of a question, an answer and a statement, and wherein the metadata creates a meta-map of a chord scheme in a musical section that is linkable to one or more secondary Form Atoms in generation of a musical composition in which, upon automated selection and concatenation of musically related Form Atoms by a computing system operationally arranged to identify and select different Form Atoms, musical good form is established in the generative composition based on compatible heuristics, chord lists and progression descriptors of each Form Atoms selected for adjacent concatenation, and wherein musical good form is compliant with conventions in accepted musical composition and musical good form contrasts with musical bad form in which there is no obvious or known linking that makes any discernible musical sense between successive musical phrases and in which musical bad form fails to communicate structure because sound signals cannot logically be processed into a sensually resolvable anticipatory order;

wherein musical transitions between Form Atoms are mapped to identify and then record established transitions between Form Atoms in multiple original scores and such that, within the system, groups exist in which Form Atoms are identified as having similar tags but different constructional properties; and

processing intelligence, within the system, responsive to the briefing narrative and coupled to the database, wherein the processing intelligence is arranged to:

assemble, automatically, a generative composition having regard to the briefing narrative through selection and concatenation of Form Atoms having tags that align with emotional descriptions timely required by respective ones of the plurality of musical sections; and

select and substitute Form Atoms into the generative composition, the substitute Form Atom:

derived from the historical corpus of music; and

having its compositional heuristics aligned with the emotional descriptions; and wherein

the processing intelligence is further arranged to cause output of the auto-generative composition as musical output created from applied heuristics within a texture generator of the generative system, said texture generator arranged to select and apply

musical instrumentation and arrangements to sequential chord schemes, formed from Form Atoms selected to generate a harmonic palette, for orchestration of the auto-generative composition and whereby the musical output is made audible from a speaker

receptive of the musical output; and

generating automatically a different generative composition in response to at least a change in the briefing narrative.

The claim is very long and is hardly a model of clarity, having many features that appear to serve no purpose other than to provide obfuscation. The overall gist, however, appears to be reasonably clear, which is that the claimed invention is about automatically generating a musical output from a briefing narrative with use of a database of 'form atoms'. 

Step 1: construe the claimed invention and determine the technical character

Claim 1 defines a "computer-based auto-generative composition system", which comprises an input to receive a briefing narrative, a database with various features, and a "processing intelligence" responsive to the briefing narrative and coupled to the database, which is arranged to cause a musical output based on heuristics in the database. The claimed invention has technical character because it involves computer hardware on which the system is provided, which receives an input and generates an output. The initial hurdle is therefore overcome, and the invention is not excluded for being a computer program as such. 

Step 2: Determine the closest prior art

This was not determined in the Hearing Officer decision, but WO 2009/036564 A1 was cited during prosecution and discloses a similar type of system in the form of a "flexible music composition engine", which generates music in real time based on provided inputs, and uses an "emotional mapper" to generate musical lines and harmonic patterns. This seems a reasonable starting point, at least to establish that computer-implemented musical generating tools are known. 

Step 3: Determine the features that contribute to the technical character

Both the input and output are in the form of cognitive information relating respectively to literary and musical works, which cannot themselves contribute to the technical character of the invention. The computer on which the system operates has technical character, so any feature of the computer could in theory contribute to the overall technical character of the invention, although as we have already established this would need to contribute to improving the computer itself in some way, given that the output is not technical. 

Step 4: Identify the inventive concept

The inventive concept outlined in the description (under the summary of the invention, pages 11-12) relates to a generative composition system that reduces existing musical artefacts to constituent elements, which are linked together through Markov chains. To provide a new composition, a set of heuristics define how musical sections are concatenated following a supplied briefing narrative. 

Step 5: Identify what, if any, differences exist

The features of the invention that could in theory contribute to the technical character, i.e. the computer as a whole or the database and processing intelligence operating on the computer, are not defined in claim 1 in a way that operates on the hardware level but as descriptive and functional elements that relate to heuristics and metadata, and therefore relate only to subjective cognitive features that would be implemented as a program for a computer to output a musical composition. There are therefore no features in claim 1 that could support novelty or inventive step over the closest prior art, even if there are any differences in how the system operates. 

Step 6: Would these differences be obvious to the skilled person?

There is no need to answer this because there are no features that can support even novelty, let alone inventive step. 

In conclusion, the claimed invention is not patentable because there are no features that can support novelty or inventive step over the prior art. The application would therefore be refused under this new test, although the reasoning is a bit different.