Emotional perception AI

On 11 February 2026, the UK Supreme Court delivered its judgment in the case of Emotional Perception AI Limited (Appellant) v Comptroller General of Patents, Designs and Trade Marks (Respondent) [2026] UKSC 3. The judgment marks a significant change in the process to be followed when assessing patentability, particularly in relation to AI inventions.

The below article provides a summary of the case and discusses the likely impact on UK patent law.

Background

Emotional Perception AI Ltd (“EPAI”) had invented a system for using artificial neural networks (“ANN”) to make personalised content recommendations to users based on similarities in both content and the emotional response to such content. EPAI’s system was allegedly faster and more accurate than existing systems. As a result, EPAI sought to register a patent in respect of the system.

UK patent law is governed by the Patents Act 1977 (“PA”) which is, itself, derived from the European Patent Convention (“EPC”). Under section 1(1) of the PA and Article 52(1) of the EPC, patents will only be granted where the relevant invention is:

1. New;
2. Involves an inventive step; and
3. Is capable of industrial application.

Additionally, section 1(2) and Article 52(2) contain a number of exclusions from what is considered an invention for the purposes of the act, including “…a program for a computer… as such”.

The UK Intellectual Property Office (“UKIPO”) refused the application on the basis that EPAI’s system was a program for a computer as such under section 1(2)(c) of the PA 1977. This was appealed to the High Court who allowed EPAI’s appeal, citing the fact that an ANN was not excluded from patentability. However, this was later reversed by the Court of Appeal who reinstated the IPO’s refusal on the aforementioned statutory exclusion.

Supreme Court Appeal

Following the Court of Appeal decision, EPAI appealed to the Supreme Court, raising three primary issues for consideration:

1. Whether the interpretation of Article 52(2) by the English Courts, as set out in the Aerotel case, should continue to be followed;
2. Whether an ANN is, or contains, a program for a computer; and
3. If it does, whether the claimed subject matter constitutes an “invention” and is therefore patentable.

The Supreme Court allowed the appeal on the basis of the following:

1. The four-step guidance of the Court of Appeal in the case of Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371, which has been followed for the past 20 years, should no longer be followed in the UK.

The Supreme Court ruled that the Aerotel case was inconsistent with the interpretation of Article 52 of the EPC endorsed by the European Patent Office’s Enlarged Board of Appeal in case G1/19. This is known as the “any hardware approach”  (meaning that if the subject matter of the claim involved the use of any hardware, then Art. 52(2)(c) is at least prima facie inapplicable) and should replace Aerotel going forward.

The Supreme Court was quick to point out that it thought this did not mean that the UK courts need to change their approach to the analysis of what amounts to an inventive step but may require some modification by introducing an intermediate step of establishing whether a feature contributes to the technical character of the invention.

2. That an ANN is a “program for a computer” regardless of whether it is software or hardware within the meaning of section 1(2)(c) of the PA and Article 52(2)(c) of the EPC; and
3. Applying the “any hardware approach” outlined at point 1, above, is not excluded from patentability despite it falling within the statutory definition of a “program for a computer”. This is because the ANN cannot be implemented without some form of computer hardware. Consequently, the subject matter is not a computer program as such as it has technical character and therefore meets the threshold of being an “invention”.

Impact on UK Patent Law

The Supreme Court judgment significantly changes the UK patent law landscape, aligning UK law with the European Patent Office.

This will provide a greater degree of certainty to applicants who are seeking to patent machine learning and, in particular, systems based around ANN’s, by adopting the more consistent and predictable EPO approach to computer-implemented inventions to the UK

As publicised by the UKIPO, it has, following the judgment:

• Suspended the published guidance for “Examining patent applications relating to artificial intelligence (AI) inventions”;
• Committed to updating the Manual of Patent Practice to reflect the decision; and
• Confirmed it will align examination practices with the European Patent Office approach endorsed by the Supreme Court.

It confirmed that each AI patent application will continue to be examined on its individual merits and the IPO will consider transitional arrangements as it implements the new approach.  Watch this space!

It will be interesting to see whether this triggers a large number of applicants resubmitting claims that have been rejected due to the UKIPO following the Aerotel guidance.