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Exploring the Patentability of Artificial Neural Networks (ANN) under UK Patent Law: The Emotional Perception AI Case

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This week, we aim to delve into one of the most intriguing and arguably significant developments in the field of AI: whether Artificial Neural Networks (ANN) would be subject to exclusion as invention under the UK Patents Act 1977.

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It is well established that Section 1(2)(c) of the Patents Act 1977 excludes ‘a program for a computer’ as an invention and thereby denies patent protection in relation thereto.  However, the pivotal question at hand is whether ANN falls within this exclusion. This precise issue was examined in the UK High Court case of Emotional Perception AI Ltd v Comptroller-General of Patents, Designs, and Trade Marks [2023] EWHC 2948 (Ch). The case focuses solely on the matter of exclusion, and in this article, we aim to meticulously examine and analyze this critical judgment.

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The Emotional Perception AI Case holds particular significance and interest as it represents the first authoritative examination of the exclusion concern pertaining to patent protection for ANN. For this reason, the case extensively addresses the nature of ANN and their operational mechanisms before delving into the question of whether ANN falls within the exclusion under Section 1(2)(c) of the Patents Act 1977.

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Examining the Structure and Functionality of ANNs

The case begins by dedicating an entire section to elucidating and clarifying the structure of ANN and its functionality. The UK High Court explains that an ANN ‘can be envisaged as a black box which is capable of being trained on how to process an input, learning through that training process, retaining that learning internally, and subsequently processing input in a manner derived from that training and learning.’

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The UK High Court further elaborated that a hardware ANN essentially constitutes a physical box containing electronic components. The ANN ‘consists of layers of neurons which, anthropomorphising somewhat, are akin to the neurons in the brain. They are arranged in layers and connected to each other, or at least some others, and to layers below. Each neuron is capable of processing inputs and producing an output which is passed on to other neurons in other layers, save that the last layer produces an output from the system and not to another layer. The processing is done according to internal instructions and further processes such as weights and biases applied by the neurons. Thus one feeds data in at the “top” and it is processed down through the layers in accordance with the states of the neurons, each applying its weights and biases and passing the result on, until the result of the processing is reflected in an output at the bottom.’

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Additionally, the court elucidated the training process of an ANN, highlighting that once an ANN has completed its training and learning process, the ANN’s structure becomes fixed and ready for use with real data. At this stage, no further adjustments or programming activities occur. The data passing through the ANN undergoes processing solely through the ANN’s nodes, with no human intervention in determining their state or operations, as ‘the state of the nodes, in terms of how they each operate and pass on data, is determined by the ANN itself, which learns via the learning process described above.’

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Summarizing the nature of a hardware ANN, the UK High Court stated, ‘What I have just described is a hardware ANN. That is to say, it is a piece of hardware which can be bought off the shelf and which contains the nodes and layers in hardware form. However, an ANN can also exist in a computer emulation. In this scenario a conventional computer runs a piece of software which enables the computer to emulate the hardware ANN as if it were a hardware ANN.’

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Whether a Hardware ANN is a Computer?

Unexpectedly, while addressing the exclusion issue, one of the pivotal aspects scrutinized by the UK High Court was to actually determine the definition of a ‘computer’ for the purpose of exclusion, and whether a hardware ANN qualifies as a ‘computer’ or a ‘program for a computer’. Referring to the Oxford English Dictionary, the court found that a hardware ANN aligns with the definition of a computer, and consequently, the judge asserted, ‘I consider that in everyday parlance it would be regarded as a computer, and ought to be treated as one within the exclusion.’ In essence, since the ANN itself isn’t a program for a computer, the entirety of the claim wouldn’t fall under the exclusion stipulated in Section 1(2)(c) of the Patents Act 1977.

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Technical Contribution and Patentability

After concluding that ANN was not a program for a computer, but indeed a computer itself, the UK High Court proceeded with caution by further analyzing a series of cases on technical contribution and concluded that a trained hardware ANN ‘can be regarded as a technical effect which prevents the exclusion applying… insofar as necessary, the trained hardware ANN is capable of being an external technical effect which prevents the exclusion applying to any prior computer program. There ought to be no difference between a hardware ANN and an emulated ANN for these purposes.’

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Conclusion and Outlook

The Emotional Perception AI Case holds particular significance for two distinct reasons. Firstly, it establishes that a hardware ANN should be classified not as a program for a computer, but as a computer itself. Secondly, even if the first determination were to be considered inaccurate, the High Court further ruled that a trained hardware ANN could be deemed to possess a technical effect, thus preventing the exclusion from applying to any preceding computer program. This judgment marks a significant milestone in AI development, offering a fresh perspective and opening up new possibilities for the patentability of AI inventions.

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With that being said, we still maintain a cautious approach and will continue to monitor legal developments in this area, and as we continue to navigate the complexities of AI patent law, this ruling serves as a beacon of progress, fostering optimism for future legal developments that accommodate and encourage innovation in AI.

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If you are looking to develop AI tools and have concerns about intellectual property protection or safeguarding the output, please reach out to our dedicated team of professionals. With a deep understanding of both AI technology and intellectual property law, our lawyers are well-equipped to assist you throughout the entire process, ensuring that your AI-generated work receives the protection it deserves in the rapidly evolving legal landscape.


About the authors

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Ong Johnson
Partner
Head of Technology Practice Group
Transactions and Dispute Resolution, Technology,
Media & Telecommunications, Intellectual Property,
Fintech, Privacy and Cybersecurity
johnson.ong@hhq.com.my

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Lo Khai Yi
Partner
Co-Head of Technology Practice Group
Technology, Media & Telecommunications, Intellectual
Property, Corporate/M&A, Projects and Infrastructure,
Privacy and Cybersecurity
Halim Hong & Quek
ky.lo@hhq.com.my

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More of our Tech articles that you should read:

Licensing of Data For AI Model Training – Things to Take Note of

Exploring the Legal Implications of AI as Inventors: UK Patent Law Perspective

Artificial Intelligence and Cybersecurity: A Double-Edged Sword Fight

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