It is well known that a patent cannot be granted in the United Kingdom for computer programs "as such" but that does not prevent patents from being granted for software-implemented inventions, The difference between what is patentable and what is not was explained by the Court of Appeal in two cases that were heard together, Aerotel Ltd v Telco Holdings Ltd and Re Macrossan [2006] EWCA Civ 1371, [2006] Info TLR 215, [2007] BusLR 634, [2007] RPC 7, [2007] Bus LR 634, [2007] 1 All ER 225: Aerotel was successful because the invention was a new system even though the only thing that distinguished it from previous systems was the addition of a component called "a special exchange" that consisted of known hardware. Macrossan was not because it was essentially a process carried out by a computer that had previously been carried out by hand.
Considerable interest was aroused last year in a judgment by Sir Anthony Mann that a system for analysing a user's tastes in music and selecting and recommending a track from any genre with which he or she might not have been familiar was patentable. There were already systems that divided music tracks into genres such as classical, folk, rock and so on which were capable of recommending a track from the same genre to a music fan based on his or her previous choices, The clever aspect of the invention in the case before Sir Anthony was that it trained itself to analyse a user's emotional and subjective preferences using artificial intelligence rather than relying on the user's previous record selections.
The invention could perform that task because it ran on an artificial neural network ("ANN"). That was an information processing system that mimicked the processing in the brain rather than the binary switching of transistors in a conventional computer. In an ANN the system trains itself in the process of analysing a user's preferences by adjusting qualifiers known as "weights" and "biases" to the information processing apparatus of individual artificial neurons. Once the process is complete the weightings can be transferred to another system. Sometimes that system is permanently wired (a process known as "hard wiring"). It is also possible to program a conventional computer to function in the same way as an ANN with neurons that have the transferred weightings.
The reason why there was so much interest in Sir Anthony's judgment was that he did not appear to consider that a hardwired ANN was a computer at all and that it certainly did not have a program. That appeared to be true even of an ANN running on a conventional computer. That was enough to put such systems outside the computer program exception altogether.
His judgment did not stand. The Comptroller-General of Patents, Designs and Trade Marks (the official title of the head of the UK Intellectual Property Office) appealed to the Court of Appeal against Sir Anthony's decision. The appeal was heard by a bench that included Lord Justice Arnold and Lord Justice Birss (two of this country's most distinguished intellectual property judges) as well as Lady Justice Nicola Davies who presided over the proceedings. The hearing has been filmed and can be viewed on the Court of Appeal's YouTube channel here and here.
Delivering the judgment of the Court, Lord Justice Birss defined a computer as "a machine which processes information" and a computer program as "a set of instructions for a computer to do something." An ANN fell within his definition of a computer and it made no difference as to whether it was hardwired or software implemented. The training process by which a user's preferences were analysed including the adjustment of weightings in individual artificial neurons fell within the definition of computer program even though it was automatic. He could see no reason why a program had to be written by a human. That was enough to haul the invention within the statutory exclusion of computer programs "as such."
The reason why there was so much interest in Sir Anthony's judgment was that he did not appear to consider that a hardwired ANN was a computer at all and that it certainly did not have a program. That appeared to be true even of an ANN running on a conventional computer. That was enough to put such systems outside the computer program exception altogether.
His judgment did not stand. The Comptroller-General of Patents, Designs and Trade Marks (the official title of the head of the UK Intellectual Property Office) appealed to the Court of Appeal against Sir Anthony's decision. The appeal was heard by a bench that included Lord Justice Arnold and Lord Justice Birss (two of this country's most distinguished intellectual property judges) as well as Lady Justice Nicola Davies who presided over the proceedings. The hearing has been filmed and can be viewed on the Court of Appeal's YouTube channel here and here.
Delivering the judgment of the Court, Lord Justice Birss defined a computer as "a machine which processes information" and a computer program as "a set of instructions for a computer to do something." An ANN fell within his definition of a computer and it made no difference as to whether it was hardwired or software implemented. The training process by which a user's preferences were analysed including the adjustment of weightings in individual artificial neurons fell within the definition of computer program even though it was automatic. He could see no reason why a program had to be written by a human. That was enough to haul the invention within the statutory exclusion of computer programs "as such."
The only thing that remainder for the Court to decide was whether the invention was a computer program "as such" or something more. In Aerotel the application got through because it was for something more, namely a new telecommunications system. Macrossan didn't because it simply automated a manual process. In other words, it was a computer program "as such." Lord Justice Birss decided that the same was true of the invention in the case before him. There was nothing technical about the choice of music tracks. As he put it:
This case note greatly simplifies - many would say oversimplifies - the Court of Appeal's decision. If you want to read it for yourself, click Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024. I have also written a more detailed note entitled Patents - the Appeal in Comptroller v Emotional Perceptions on 26 Aug 2024 in NIPC Law. Anyone wishing to discuss this article is welcome to call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form.
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