Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks

A claim involving any technical means, including ordinary computer hardware, is an invention for the purposes of article 52 of the European Patent Convention. The four-stage Aerotel approach should no longer be followed.

For a mixed invention, an intermediate assessment must identify its technical character as a whole and filter out features which do not contribute to that character before novelty and inventive step are considered. A feature may contribute regardless of whether it is technical when viewed separately.

An artificial neural network is an abstract computational model and constitutes a program for a computer. A claim implementing it through hardware is nevertheless not a computer program “as such”. Such a claim clears the eligibility threshold, although it must still satisfy novelty, inventive step and industrial application.

The appellant sought a patent for a file-recommendation system and method. A trained artificial neural network compared measurable properties of media files so as to reproduce similarities associated with human semantic or emotional responses.

A UKIPO Hearing Officer refused the application under section 1(2)(c) of the Patents Act 1977, treating the claims as relating to a computer program as such. The High Court allowed an appeal: [2023] EWHC 2948 (Ch). The Court of Appeal restored the Hearing Officer’s decision: [2024] EWCA Civ 825.

The Supreme Court considered whether the Aerotel methodology remained correct after the Enlarged Board of Appeal’s decision in G1/19, whether an artificial neural network was a program for a computer, and whether the claims were excluded as a computer program “as such”.

1. The appeal was allowed unanimously. Lord Briggs and Lord Leggatt gave the judgment, with which Lord Hamblen, Lord Stephens and Lord Kitchin agreed. The Hearing Officer’s decision was set aside, and the application was returned for consideration of the remaining patentability requirements.

2. The four-stage approach in Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371 should no longer be followed, apart from its uncontroversial first step of construing the claim. The Enlarged Board’s decision in G1/19 established that Aerotel misinterpreted article 52 of the European Patent Convention by combining the separate questions of invention, novelty and inventive step. Consistency and comity required the United Kingdom to adopt the Enlarged Board’s interpretation.

3. A claim involving technical means is an invention under article 52. A computer-implemented claim therefore clears this initial, low threshold merely by requiring a computer, storage medium or other hardware. Courts should then apply Duns principles A–F, as explained in G1/19. Adoption of that interpretation does not require use of the EPO’s problem-and-solution methodology. The Pozzoli approach to inventive step remains legitimate.

4. For a mixed invention, an intermediate step must precede the assessment of novelty and inventive step. The decision-maker must identify the technical character of the invention as a whole, dissect the claim into features, and retain only features contributing to that technical character. A technical feature may be filtered out, while a non-technical feature may be retained, depending on its contribution or interaction. Novelty and inventiveness form no part of this intermediate inquiry.

5. An artificial neural network is an abstract model comprising a network topology, weights, biases and activation functions. It is not itself a physical computer. When implemented, however, it is a set of instructions causing a machine to perform computations and manipulate data in a determined manner. The network as a whole is therefore a “program for a computer”. This conclusion is unaffected by its hardware implementation, parallel processing, machine-generated parameters, or the freezing of its weights and biases.

6. The claims were not for a computer program “as such”. They necessarily involved computer hardware and also referred to a database, communications network and user device. They consequently had technical character and constituted an invention under article 52. The Court declined to perform the intermediate assessment without focused argument and findings from the UKIPO and specialist courts.

1. United Kingdom Supreme Court: The appeal was allowed unanimously: [2026] UKSC 3. The Court of Appeal’s conclusion on exclusion was displaced, the Hearing Officer’s decision was set aside, and the remaining patentability questions were left to the UKIPO.
2. Court of Appeal: The Comptroller General’s appeal was allowed and the Hearing Officer’s refusal was restored: [2024] EWCA Civ 825; [2024] Bus LR 1589; [2024] RPC 25.
3. High Court: Sir Anthony Mann allowed the patent applicant’s appeal: [2023] EWHC 2948 (Ch); [2024] Bus LR 14; [2024] RPC 2.
4. UK Intellectual Property Office: The Hearing Officer refused the application because the claims were regarded as relating to a program for a computer as such.