Emotional Perception and 8 New Square reopen AI case at Supreme Court

Today, the UK Supreme Court handed down its ruling in a complex case concerning the patentability of AI. The judges found that the UK approach under the Aerotel vs the UK Patent office decision involved a misinterpretation of Article 52 EPC because it improperly mixed the concept of an “invention” with questions of novelty and inventive step (case ID: UKSC/2024/0131).

The Supreme Court panel consisted of Lord Briggs, Lord Hamblen, Lord Leggatt, Lord Stephens, and Lord Kitchen, who is a former patent judge. They confirmed that the UK must now follow the EPO’s G 1/19 approach when assessing AI‑related inventions.

Furthermore, the judges ruled that an invention as a pure computer programme “as such” is not excluded from patentability if it requires physical hardware for implementation, no matter how commonplace that hardware may be. The judges found that an artificial neural network (ANN) is to be regarded as a “program for a computer” within the meaning of patent law. However, since the Emotional Perception AI system requires implementation on computer hardware, it has the necessary technical character of an invention and could clear the first hurdle of patentability.

The Supreme Court did not rule on whether Emotional Perception AI’s invention is actually patentable. The judges referred the case back to the UKIPO for reconsideration. The office will take an “intermediate step” to examine which features of the invention contribute to its technical character before assessing its novelty and inventive step.

This means that the Emotional Perception AI case is now open again. There is no guarantee that the invention will ultimately receive patent protection after years of dispute, even after an examination using the UK Supreme Court’s new test procedure.

The long road

Originally, Emotional Perception AI filed a patent application at the UKIPO for a system that recommends data files. The technology uses an artificial neural network to, for example, organise music files in a different way than common search algorithms.

The UKIPO initially rejected the application in June 2022 on the basis that it constituted a “program for a computer”, and thus fell under an exclusion from patentability in accordance with the Patents Act 1977. The UK High Court then came to a different conclusion in November 2023, specifically that the exclusion did not apply in this case.

Subsequently, the UKIPO suspended its guidelines on AI patents and submitted an appeal. The UK Court of Appeal then overturned the High Court ruling in July 2024. The judges Richard Arnold, Nicola Davis and presiding judge Colin Birss stated that the ANN technology – whether implemented as hardware or software – does in fact fall under the definition of a computer program and should therefore be treated as such.

Nevertheless, Emotional Perception AI did not give up and escalated the case to the Supreme Court.

Parties retain same counsel

During the case both parties relied on the same barristers. Emotional Perception AI has relied barristers from 8 New Square for the entire case. The barristers in the case were KC Mark Chacksfield and Edmund Eustace. JUVE Patent featured junior barrister Eustace in its Ones to Watch in UK patent litigation 2025. The barristers also represented Emotional Perception AI in the final hearing at the Supreme Court.

Hepworth Browne partner and patent attorney Bruce Dearling has represented the startup since its inception. He has worked on the technology in this case for many years and filed the patent.

Anna Edwards-Stuart of 11 South Square represented the UKIPO in the previous proceedings as well as at the Supreme Court. Edwards-Stuart became King’s Counsel in 2023 and primarily has a reputation as an expert in pharmaceutical and biotechnology cases. Brian Nicholson, who has a technical background, provided assistance.

Positive for the UK

The case has attracted considerable attention in the computer and AI industry, as well as among UK patent attorneys and lawyers. Accordingly, the reactions following the verdict came thick and fast, with many considering the consequences of the decision to be far-reaching.

“Whether this results in an aligning of the UK approach to inventive step with that of the European Patent Office remains to be seen,” says Peter Dalton, partner at Herbert Smith Freehills Kramer. “Should the patent be allowed, the impact on the AI industry could be major, allowing AI operators to seek monopoly protection for up to 20 years over elements of AI functionality and implementation. Indeed, the claims in this case reference certain fundamental concepts of LLM implementation.”

Mark Marfé, partner at Pinsent Masons, says: “The UK remains at the forefront of judicial engagement with the big questions that matter to AI developers. Even though the detailed assessment now returns to the UK Intellectual Property Office, the Supreme Court’s guidance brings valuable clarity, helping innovators understand how to protect their technology in the UK and strengthening the jurisdiction’s attractiveness for AI focused investment and international patent filing strategies.”

Meanwhile, Ben Husband from Carpmaels & Ransford says: “The decision will boost commercial confidence, making the UK a more predictable and attractive jurisdiction for AI innovation, investment, and patent filing, setting the stage for more robust protection of cutting‑edge AI technologies, and strengthens the UK’s position in the global AI IP landscape.” (Co-author: Laura King)