Today, Wednesday 11 February 2026, the UK Supreme Court issued their decision on Emotional Perception AI Limited v Comptroller. The decision represents an overhaul to the way computer program inventions should be assessed in relation to excluded subject matter in the UK.
In particular the decision concerns the interpretation of Article 52(2)(c) and (3) EPC and equivalent provisions in Section 1(2)(c) of the Patents Act 1977. In these Articles/Sections “programs for computers…as such” are excluded from patentability. Since October 2006, the UK courts have been following the approach set out in Aerotel Ltd v Telco Holdings Ltd (“Aerotel”) to assess whether an invention falls within these provisions. However, this latest UK Supreme Court decision has called this into question.
Background to the Appeal
The appeal is centred around whether an artificial neural network (ANN) is patentable under UK patent law. The appellant (Emotional Perception AI Ltd) applied for a patent for a system or method that uses an ANN to provide file recommendations, for example enabling a person who is interested in a particular media file to obtain recommendations of files creating a similar emotional response.
Initially, the UK Hearing Officer from the UKIPO rejected the application for being excluded under the above-mentioned provisions. The applicant appealed the decision to the High Court and was successful. A further appeal to the Court of Appeal by the Comptroller General of Patents resulted in the Hearing Officer’s decision being reinstated.
The appellant’s appeal to the UK Supreme Court has raised three issues, namely:
- Should the Aerotel guidance no longer be followed?
- Is an ANN (or does it contain) a “program for a computer”?
- Is the entire subject matter of the claims excluded?
The UK Supreme Court decisions for each of these issues are summarised below. Note that references is square brackets relate to the paragraph numbers in the Supreme Court Judgement.
Issue 1 – Should Aerotel no longer be followed
The UK Supreme Court noted that decisions of the Boards of Appeal of the European Patent Office, in particular Duns Licensing Associates, rejected the Aerotel approach as being inconsistent with the EPC, favouring instead what has been coined the “any hardware” approach [34]-[36]. G1/19, an Enlarged Board of Appeal of the EPO decision, firmly endorsed this “any hardware” approach under which the subject matter of a claim is not excluded from patentability under Art. 52(2)(c) EPC merely by referring to the use of a computer, a computer-readable storage medium or other technical means [38].
The UK Supreme Court have noted that UK courts are not strictly bound by the decisions of the Boards of Appeal of the EPO, but they should respect and follow the Enlarged Board’s decisions unless convinced that they are wrong [44]. Therefore, the Aerotel approach should no longer be followed and that instead the approach which should be adopted in the UK courts is that contained in the Duns principles (other than the final principle) and following G1/19 [66].
Issue 2 – Is an ANN (or does it contain) a “program for a computer”?
Firstly, the definition of a computer needs to be established. The UK Supreme Court noted that the definition of “a machine which processes information” is too broad [76] whilst there is no reason to confine the term “computer” to a conventional digital computer [77]. Similarly, the term “computer program” should be interpreted to mean a set of instructions capable of being followed by a computer of any kind [78],[79].
In the case of an ANN the series of mathematical operations, such as weights and biases between nodes, an output of a numerical result at different successive layers constitute instructions to manipulate data regardless of the specific hardware on which the ANN is to be implemented [84]-[87].
This results in the conclusion that an ANN is a “program for a computer” within the meaning of Art. 52(2)(c) EPC [96].
Issue 3 – Is the entire subject matter of the claims excluded
An ANN being considered a “computer program” leads to the necessary discussion of whether the claims of the patent application in question fall entirely within the scope of the exclusion for computer programs as such. Applying the EPO “any hardware” approach as discussed in G1/19, although the claims involve an ANN which is considered to be a computer program, the claims also necessarily involve technical means because the ANN can only be implemented on some form of computer hardware [98]. Therefore, the claims are not directed towards a “computer program … as such”.
This leads to the conclusion that the UKIPO was wrong to refuse the application for the reasons it did.
Moving forwards
The UK Supreme Court referred the case back to the Hearing Officer to apply the remainder of the necessary steps for assessing the patent. The UK Supreme Court did not provide comment on the application on the EPO intermediate step of which features are/aren’t technical, which has never been applied in UK courts [112]-[118].
Whilst the decision may, at first, seem positive for AI inventions, the “any hardware” requirement in the EPO approach has always presented a low hurdle to overcome, with the intermediate step of assessing which features are technical and eventual assessment of inventive step providing a greater challenge to all computer implemented inventions, not just those centred around AI.