Key Facts
- •Emotional Perception AI Ltd (EPL) applied for a patent for a system providing media file recommendations using an artificial neural network (ANN).
- •The Comptroller-General rejected the application on the grounds that the invention was a computer program 'as such', excluded by s1(2) of the Patents Act 1977.
- •The High Court overturned the rejection, holding that the ANN, whether hardware or software implemented, did not constitute a computer program.
- •The Comptroller appealed to the Court of Appeal.
Legal Principles
Section 1(2) of the Patents Act 1977 excludes from patentability anything that consists of, among other things, 'a program for a computer'.
Patents Act 1977, s1(2)
The Aerotel four-stage test is used to determine whether an invention is excluded from patentability under s1(2): (1) construe the claim; (2) identify the contribution; (3) ask whether it falls solely within the excluded matter; (4) if not, check whether the contribution is technical.
Aerotel Ltd v Telco Holdings Ltd [2007] RPC 7
The AT&T Knowledge Ventures signposts can be helpful in determining whether a computer program makes a technical contribution.
AT&T Knowledge Ventures v Comptroller [2009] EWHC 343 (Pat)
Outcomes
The Court of Appeal allowed the Comptroller's appeal.
The Court held that the weights and biases of the ANN constitute a computer program, thus engaging the s1(2) exclusion. The Court found that the contribution of the invention was not technical in nature because the improvement (better recommendations) resulted from semantic qualities rather than technical effects. The technical nature of the computer system itself does not make the invention patentable.