Emotional Perception AI Limited v. The Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3
In this landmark decision of the Supreme Court, the Court considered the applicability of the excluded subject matter exceptions under Article 52 EPC to the Artificial Intelligence and other future systems such as quantum computing.
The Court rejected the Appellant’s primary submission that the “program for computers…as such” exclusion do not apply to artificial intelligence systems. The UKSC upheld the Court of Appeal’s and Comptroller’s decisions that AI did involve a program for a computer and the requirements of the exclusion had to be met. The UKSC also indicated that the same would potentially apply in respect of “mathematical methods” and to other subject-matter, such as quantum computing.
The Court further rejected the Appellant’s next submission, that the UK should take the “Any Hardware” approach simpliciter from the EPO, followed by an unmodified form of the Pozzoli test for obviousness. The UKSC identified that G1/19 from the Enlarged Board of Appeal did not confine its analysis to merely “Any Hardware” plus problem-solution, but rather “Any Hardware+COMVIK”, in which COMVIK involved an intermediate step of removing excluded subject matter from the ’solution’ part of the inventive step analysis. The UKSC held that the UK should nevertheless cease to follow Aerotel, in preference for the EPO Enlarged Board’s approach in G1/19, but utilising Pozzoli instead of problem-solution. The resultant test was new and would need to be worked out by the lower courts and tribunals, starting with the Comptroller General.
The Appellants 3rd and 4th Grounds were rendered moot (they sought to challenge the detailed application of Aerotel to the patent application in suit). No case had been advanced by the Appellant on the basis of AH+Pozzoli with an intermediate step, so much so that the UKSC was unable to consider the application of the new test to the patent application in suit.
For these reasons, the UKSC had no choice but to remit the patent application in suit to the Comptroller General for consideration and application of the new test.
Brian Nicholson KC and Anna Edwards-Stuart KC appeared for the Comptroller-General of Patents Designs and Trade Marks.
The UKSC Judgment can be obtained from here: