The UK Supreme Court drops Aerotel and moves the neural network patent fight to inventive step

2026-02-11UK

Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3 (11 February 2026) (Lord Briggs and Lord Leggatt, with whom Lord Hamblen, Lord Stephens and Lord Kitchin agree), allowing the appeal from [2024] EWCA Civ 825

Emotional Perception's application claims a system that recommends media files using an artificial neural network trained on pairs of files compared by two measures, so that distances between file vectors track semantic distances. The Hearing Officer refused the application, the High Court allowed the applicant's appeal, and the Court of Appeal restored the refusal. The Supreme Court agreed that a network is "a set of instructions to manipulate data in a particular way" and so "a program for a computer" (para 87), however its weights were set. It held there is "a compelling case, in the light of G1/19, for rejecting the Aerotel approach" (para 64) and adopted the approach of the EPO Boards of Appeal. The claims involve technical means "because the ANN can only be implemented on some form of computer hardware" and refer to a database, a communications network and a user device (para 98), so their subject matter "constitutes an invention within the meaning of article 52" (para 100). Excluded matter is dealt with at inventive step through the intermediate step of G 1/19, under which "the sole criterion is whether the feature contributes to the technical character of the invention as a whole" (para 109). The court allowed the appeal, set aside the refusal and left inventive step to the Hearing Officer (para 118).

What it changesThe United Kingdom now examines computer-implemented and machine learning inventions the way the EPO does: any hardware clears the exclusion, and the contest moves to inventive step, where only features that contribute to technical character count. A trained network gets no special route, since the court held it is a program like any other. For United Kingdom filings and validations, draft as for the EPO: identify the technical effect each model feature produces, such as reduced computation, memory or latency or a measurement of a physical signal, state it in the specification, and tie it to the claimed features, because a recommendation that is merely more semantically apt is the kind of feature the intermediate step can filter out. Applications refused or narrowed under Aerotel deserve a fresh look, and pending appeals should be argued on the new approach. The court decided only the exclusion; the Hearing Officer still decides inventive step.

More on Eligibility of software and AI claims · Prior art, public disclosure and obviousness

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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