Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3

Emotional Perception AI sought to patent a system using an artificial neural network to recommend media files based on emotional similarity. The Supreme Court held that while ANNs are 'programs for computers', the invention was not excluded from patentability as it involved hardware. The Court rejected the Aerotel approach, adopting EPO methodology.

Facts

Emotional Perception AI Limited applied for a patent for a system and method using an artificial neural network (ANN) to provide file recommendations. The invention trained an ANN to replicate subjective human perceptions of similarity between media files (such as music tracks) by reference to objectively measurable physical properties, enabling recommendations calculated to elicit similar emotional responses without semantic comparison.

The UK Intellectual Property Office (UKIPO) rejected the application on the ground that it fell within the exclusion from patentability of ‘programs for computers… as such’ under section 1(2)(c) of the Patents Act 1977, implementing Article 52(2)(c) of the European Patent Convention (EPC). The High Court allowed the appeal, but the Court of Appeal reversed this decision and restored the UKIPO’s refusal.

Issues

Issue 1: The Aerotel Approach

Whether the four-step approach laid down by the Court of Appeal in Aerotel Ltd v Telco Holdings Ltd should continue to be followed in light of the Enlarged Board of Appeal’s decision in G1/19.

Issue 2: Computer Program

Whether an ANN is, or contains, a ‘program for a computer’ within the meaning of Article 52(2)(c) of the EPC.

Issue 3: Program ‘As Such’

Whether the subject matter of the claims is a program for a computer ‘as such’ and therefore excluded from patentability.

Judgment

Rejection of the Aerotel Approach

The Supreme Court held that the Aerotel approach should no longer be followed. The Court noted that the Enlarged Board in G1/19 had firmly rejected the Aerotel methodology as incompatible with the EPC and based upon a misunderstanding of the term ‘invention’.

“The strongest reason for rejecting the Aerotel approach is that it has been emphatically rejected as a means of applying article 52(2) and (3) by the Enlarged Board in G1/19.”

The Court adopted the ‘any hardware’ approach endorsed by the EPO, whereby a claim involving any hardware is not excluded by Article 52(2). The Court approved the Duns principles (except principle G relating to problem and solution methodology) as endorsed in G1/19.

ANNs as Computer Programs

The Court held that an ANN is a ‘program for a computer’ within the meaning of Article 52(2)(c). The Court rejected the applicant’s argument that ANNs are physical machines rather than programs.

“An ANN is an abstract model which takes a numerical input, applies a series of mathematical operations (applying weights, biases and an activation function) and outputs a numerical result at successive layers.”

The Court concluded that an ANN, regardless of how implemented, constitutes a set of instructions to manipulate data in a particular way:

“Whatever the specific form of the machine on which an ANN is implemented, the ANN constitutes, in essence, a set of instructions to manipulate data in a particular way so as to produce a desired result. In other words, an ANN is a program for a computer.”

Not Excluded ‘As Such’

Applying the ‘any hardware’ approach, the Court held that the claims were not to a computer program ‘as such’ because they involved technical means including computer hardware, a database, a communications network and a user device.

“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.”

Implications

This judgment represents a fundamental shift in UK patent law regarding computer-implemented inventions. The rejection of the Aerotel approach and adoption of the EPO’s methodology means that claims involving any hardware will clear the first hurdle of qualifying as an ‘invention’ under Article 52. The focus then shifts to an ‘intermediate step’ which filters out non-technical features before assessing novelty and inventive step.

The decision provides important guidance on the patentability of AI technologies, confirming that while ANNs are computer programs, inventions involving them are not automatically excluded from patentability. The Court emphasised that UK courts should follow EPO jurisprudence on interpretation of the EPC unless convinced it is wrong, promoting harmonisation of patent law across contracting states.

However, the Court deliberately refrained from providing detailed guidance on applying the intermediate step to this case, leaving further development to the UKIPO and lower courts with the benefit of fuller argument.

Verdict: Appeal allowed. The decision of the Hearing Officer was set aside. The Court held that: (1) the Aerotel approach should no longer be followed and the EPO’s interpretation of Article 52 as set out in G1/19 should be adopted; (2) an ANN is a ‘program for a computer’ within Article 52(2)(c); (3) however, the claimed invention is not a program for a computer ‘as such’ because it involves hardware and other technical means. The matter was remitted to the UKIPO to consider novelty and inventive step.

Source: Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks (UKSC/2024/0131)