UK SUPREME COURT CASE AND EPC
Emotional Perception AI Limited (Appellant) v Comptroller General of Patents, Designs and Trade Marks (Respondent)
[2026] UKSC 3 – On appeal from [2024] EWCA Civ 825
Case ID: UKSC/2024/0131
On 11 February 2026, the Supreme Court handed down its eagerly awaited judgement in the Emotional Perspective AI case, ruling that an invention directed towards a pure computer program “as such” is not excluded from patentability where the claimed subject matter involves any form of physical hardware for implementation. This case has significant implications for the patentability of AI in the UK. It also provides some harmonisation between the UK and EPO with regard to how computer implemented inventions are evaluated.
Background
This appeal raises the question of whether it is possible to obtain a UK patent for a system which uses an artificial neural network (“ANN”). An ANN is a model inspired by the human brain that can engage on machine learning. The appellant has applied for a patent for a system or method that uses an ANN to provide file recommendations. Specifically, the case concerns an artificial neural network (ANN) designed to recommend songs to users based on a combination of semantic and musical properties. The system can be implemented either in hardware form or through software emulation.
The Hearing officer at the UKIPO initially refused Emotional Perception’s patent application, holding that the invention was a computer program “as such” and therefore excluded from patentability under section 1(2)(c) Patents Act 1977. On appeal, the High Court allowed the appeal and held that the invention was not a computer program at all and therefore the exclusion under section 1(2 (c) was not engaged. The Court of Appeal reversed this decision again, Lord Birss, giving the unanimous judgment adopted broad interpretations of “computer” and “computer program”, holding that an ANN qualifies as a computer because it processes information, and that the weights and biases which determine how information is processed constitute a set of instructions. In addition, the Court held there was no distinction for these purposes between hardware and software implementations of ANNs. On the question of technical contribution, the Court found that the beneficial effect of recommending songs based on semantic similarity was subjective and cognitive in nature, rather than technical. The invention was therefore held to be a computer program “as such” specified by the combination of Article 52(2) and (3) loosely replicated but with no intentionally different meaning in section 1(2)(c) of the Patents Act 1977.
Final Supreme Court Judgment
In a unanimous judgment, the Supreme Court allowed Emotional Perception’s appeal and set aside the decision of the Hearing Officer from which the appeal originated. The Court confined its ruling to the issues mentioned below and referred the case back to the Hearing Officer to apply the intermediate step and the remaining requirements for patentability to the claimed invention.
The Court addressed three principle issues:
- Should the established Aerotel Ltd v Telco Holdings Ltd [2007]RPC 7 approach to assessing patentability no longer be followed?
- Is an ANN (or does it contain) a “program for a computer” within the meaning of article 52 (2) (c) of the EPC; and
- Is the entire subject matter of the claims excluded?
Should the established Aerotel approach to assessing patentability no longer be followed?
The Supreme Court’s decision has overturned Aerotel in light of the EPO’s Enlarged Board of Appeal decision in G1/19, (Bentley Systens (UK) Ltd/Perception Simulation), in line with European practices, distancing itself from the strict four-step rules adopted in the Aerotel case. The Supreme Court decided that the Aerotol approach merges the assessment of whether or not there is an invention with that of novelty and inventive step, when they should be treated separately. G 1/19 sets out that subject matter will not be excluded from patentability if it embodies or involves the use of physical hardware (although it may still lack inventive step) the “any hardware” approach. Despite concerns raised at the appeal hearing that such a decision would require the UK also to overturn the UK’s approach to inventive step in Pozzoli SpA v BDMO SA [2007] EWCA Civ 588, the Supreme Court disagreed, citing the UK’s approach as legitimate practice in light of the reading of the EPC in its proper context. Pozzoli remains good law, although the Court said that it may require some modification in the future.
IS an ANN (or does it contain) a “program for a computer” within the meaning of Article 52 (2) of the EPC;
The Supreme Court concluded that UKIPO hearing officer was right to hold that an ANN is a program for a computer “as such”. The court found no distinction between “hardware ANNs” and “software ANNs”. It agreed with the Court of Appeal that “that there is no justification for drawing a distinction in law between instructions created by a computer and those created by a human being”. The Court also held that the Court of Appeal was correct to hold the exclusion from patentability for “programs for computers” provided by Article 52(2)(c) EPC is engaged in this case.
Is the entire subject matter of the claims excluded?
The Supreme Court acknowledged that the “any hardware” approach provides a very low hurdle to clear in order for the claims to be considered an invention.
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. This was sufficient to show that the subject matter of the claims has technical character and is not a computer program “as such”. Therefore, the Court held the UKIPO was wrong to refuse the application for a patent for the reason it did. The Court acknowledged the need for the intermediate step of G 1/19; to filter out features which do not contribute to the technical character of the invention as a whole. Since this step in G 1/19 is drafted in terms of the technical solution to a technical problem (drawn from the EPO’s problem-solution approach to inventive step), it decided to not follow it, noting the UKIPO and UK courts are open to adopt any appropriate method of identifying technical character. The Supreme Court did not consider it appropriate for it to define this step or perform it on the claims of the patent in suit as this intermediate step has not been applied in the UK before. The application was referred back to the UKIPO for reconsideration without any further comment as to the patentability of the application.