Emotional Perception’s AI machine used ANNs to offer music, film and other media viewers file recommendations likely to elicit a similar emotional response. Delivering the judgment, Lord Briggs said that, while such recommendations services are familiar to anyone who checks news items on a mobile phone, Emotional Perception claimed their machine performed more quickly, accurately and made better recommendations than anything currently available.
The ruling this week, in Emotional Perception AI v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3, found Emotional Perception’s AI machine does not fall under the excluded category of ‘computer program’. It overturns the Court of Appeal’s decision in 2024, which in turn overturned the High Court. The conundrum of what does and does not fall under the exclusion has been a knotty issue for the courts as technology has evolved.
The Patents Act 1977, which implements the European Patent Convention, lists categories of excluded items, which cannot be an invention and cannot be patented. These are aesthetic creations, rules for playing games, scientific theories and programs for computers (art 52 of the Convention). The question before the court was whether Emotional Perception’s ANN is a program.
The court’s decision abandons the approach to art 52 of the Convention taken in Aerotel v Telco Holdings [2006] EWCA Civ 1371, which has been followed in the UK for the past 20 years. Instead, it follows the ‘any hardware’ approach taken in the so-called G1/19 case, Bentley Systems (UK)/Pedestrian Simulation (Decision G1/19) [2021] EPOR 30, under which the subject matter is not excluded if it embodies or involves the use of a piece of physical hardware, however mundane.
Luke Maunder, partner, Osborne Clarke, said: ‘This represents a seismic shift in how AI-related and software-based inventions may be assessed in the UK. For businesses operating in the AI space, the judgment could open the door to a more harmonised European strategy—but it also introduces a period of uncertainty while the new approach beds in.’
