Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks, UK Supreme Court, 11 February 2026, Case no. [2026] UKSC 3
The UK Supreme Court has handed down its judgment in Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks, addressing the treatment of artificial neural networks (“ANNs”) under the exclusions from patentability in section 1(2) of the Patents Act 1977 (reflecting Article 52 EPC).
The appeal considered whether ANNs fall within the exclusion for a “program for a computer … as such” and how that exclusion should be applied.
Background
Emotional Perception AI developed a system using an ANN to generate personalised media recommendations (e.g. song suggestions) based on the physical properties of files, rather than human-assigned tags. The UKIPO refused to grant the patent, finding that the claims related to a computer program as such and were therefore excluded from patentability.
Emotional Perception AI succeeded on appeal to the High Court, which held the ANN was not excluded. On further appeal, the Court of Appeal reversed that decision, restoring the UKIPO’s decision. Emotional Perception subsequently appealed to the Supreme Court.
The statutory framework and prior legal tests
Section 1(2) of the Patents Act 1977 excludes certain subject matter, including “programs for computers … as such,” but only to the extent that a claim relates to them “as such”. Historically, UK courts have for 20 years applied the Aerotel four-step test:
1. properly construe the claim;
2. identify the actual contribution;
3. ask whether it falls solely within the excluded matter;
4. check whether the actual or alleged contribution is actually technical in nature.
This so-called “technical effect approach” endorsed in Aerotel has, over time, been viewed by the EPO as being inconsistent with the EPC. In Duns Licensing Associates (Decision T 154/04) [2004] EPOR 10, the Board of Appeal of the EPO criticised this approach as misinterpreting “invention” under Art 52 as having to be novel or involving an inventive step, which are separate and independent requirements of patentability within the scheme of the EPC. In doing so, it endorsed what has been called the “any hardware” approach, according to which the subject matter of a claim will not be excluded from patentability under Art 52 if it embodies or involves the use of a piece of physical hardware, however mundane.
In G1/19, the Enlarged Board of Appeal endorsed the “any hardware approach”, which squarely addresses the question of whether the claim amounts to an eligible “invention” under Art 52 EPC (step 1), ahead of and separately from novelty under Art 54 EPC, inventive step under Art 56 EPC and industrial application under Art 57 EPC (step 2). An intermediate step also lies between steps 1 & 2, which is to filter out features (which may be technical or non-technical) of the invention which do not contribute to, or interact with, the technical character of the invention viewed as a whole, so as to exclude those features from consideration under step (2).
Issues before the Supreme Court
The Supreme Court considered whether:
• the Aerotel guidance should no longer be followed in the UK;
• ANNs constitute a “program for a computer” and if so, whether the subject matter of the claims was excluded “as such”.
The Court’s reasoning
In a unanimous judgment, Lord Briggs (with whom Lords Hamblen, Leggatt, Stephens and Kitchin agreed) allowed the appeal.
First, the Court emphasised that the Patents Act was intended to align UK law with the EPC and that consistency with EPO jurisprudence remains of central importance. While acknowledging its historical role, the Court held that the Aerotel approach should no longer be followed. The analysis of excluded matter must be conducted in a manner consistent with Art 52 EPC as interpreted in G1/19, with the detailed assessment of technical contribution ordinarily addressed within the inventive step inquiry.
Second, on ANNs, the Court held that they do fall within the concept of “program for a computer.” The statutory language must be interpreted in a technologically neutral way. ANNs implemented in software (or hardware performing equivalent computations) are in substance a form of computer program.
Third, the exclusion only applies if the invention is a computer program “as such.” The Court found that although the claimed method involves an ANN which is a program for a computer, it also involves technical means because the ANN can only be implemented on some form of computer hardware. That is sufficient to show that the subject matter of the claims has technical character and is not a computer program “as such”, and accordingly qualifies as an invention within the meaning of Art 52 (step 1 of the G1/19 approach – referred to by the Court as a “very low hurdle”). The UKIPO was therefore wrong to refuse grant of the patent for the reason it did (i.e. by applying Aerotel).
The Court then went on to comment on the approach to “intermediate step” in G1/19 (filtering out features of the invention which do not contribute to, or interact with, the technical character of the invention viewed as a whole), but ultimately concluded that it was unable to further define the intermediate step in cases involving programs for computers or to carry it out in relation to Emotional Perception’s patent application because the Court had not received detailed argument or the views of the UKIPO and the courts below on the application of the intermediate step under G1/19.
Accordingly, the Court referred the case back to the UKIPO to apply the intermediary step (applying any appropriate method) and assess the remaining requirements of patentability under step 2 of the G1/19 test.
The judgment can be found here.
