Landmark ruling clears path for AI patent after major legal shift
The Supreme Court has unanimously allowed the appeal in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3, ruling that long-standing guidance used to assess computer program exclusions in UK patent law should no longer be followed.
The appeal concerned whether a system using an artificial neural network (ANN) can qualify for patent protection under the Patents Act 1977 and Article 52 of the European Patent Convention (EPC). The appellant, Emotional Perception AI Ltd, applied for a patent for a method that uses an ANN to recommend media files capable of producing a similar emotional response to one selected by a user.
The UK Intellectual Property Office (UKIPO) originally rejected the application on the basis that it fell within the exclusion of “programs for computers … as such”. The High Court allowed the applicant’s appeal. The Court of Appeal later reinstated the refusal, applying the structured four-step approach set out in Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371, which has guided UK courts for nearly two decades.
The Supreme Court, comprising Lord Briggs, Lord Hamblen, Lord Leggatt, Lord Stephens and Lord Kitchin, held that the Aerotel approach should no longer be followed. Giving the judgment with Lord Leggatt, Lord Briggs concluded that subsequent decisions of the Boards of Appeal of the European Patent Office, including G1/19, endorsed the “any hardware” approach. Under that approach, a claim is not excluded from patentability if it involves the use of physical hardware, however ordinary.
The Court held that the concept of an “invention” under Article 52 requires only that the claimed subject matter possesses technical character. It rejected the interpretation in Aerotel that linked the question of “invention” to novelty or inventive step, which are separate statutory requirements.
On the second issue, the Court ruled that an ANN is a “program for a computer” within the meaning of Article 52(2)(c). It described an ANN as an abstract model that processes numerical inputs through mathematical operations to generate outputs. Although capable of being implemented on different forms of hardware, the ANN itself constitutes a set of instructions for manipulating data.
However, applying the “any hardware” approach, the Court held that the claimed invention was not excluded as a computer program “as such”. Because the ANN must operate on computer hardware, the claims have technical character.
The Court declined to apply the newly recognised “intermediate step” itself. Instead, it remitted the case to the Hearing Officer to apply that step and consider the remaining requirements of novelty and inventive step under the correct legal framework.