21 July 2025 marked the start of the hearing of Emotional Perception AI Limited (EPAI) v Comptroller General of Patents at The Supreme Court, the outcome of which is expected imminently. In anticipation of this important decision, we briefly recap what this dispute relates to and how we got here.
In summary, this hearing took place to determine whether the statutory exclusion on patenting a program for a computer as such applies to artificial neural networks (ANNs), and if so, whether it prevents EPAI from being granted a patent involving an application of this technology.
By way of background, EPAI developed an ANN capable of providing media file recommendations, such as providing song recommendations to a user based on a music file’s physical properties (e.g., the tone, timbre, speed and loudness associated with the contents of the music file), rather than relying on categories identified by humans.
EPAI filed a patent application directed to their ANN at the UK Intellectual Property Office (UKIPO). However, the UKIPO rejected the patent application, on the basis that the ANN constituted a “program for a computer…as such”, per section 1(2)(c) of the Patents Act 1977, which is excluded from patentability.
EPAI appealed the UKIPO’s decision to reject the patent application to the High Court. The High Court passed judgement concluding that (i) the ANN claimed in EPAI’s patent application produces a technical effect occurring outside of the computer such that the ANN claimed in EPAI’s patent application is not a program for a computer as such and that (ii) even if one were to consider the computer program as either the training program or the overall training activity, the resulting ANN can be regarded as a technical effect which thereby prevents the computer program exclusion from applying. As a result, it was found that the statutory exclusion to patentability of computer programs as such did not apply.
The UKIPO appealed the High Court ruling to the Court of Appeal. The Court of Appeal found that the ANN-based music recommendation tool was in effect “a set of instructions for a computer to do something”, and therefore a computer program as such, which is excluded from patentability.
Which brings us to the hearing at the Supreme Court on 21 July 2025. There is the potential for the Supreme Court’s judgement to significantly change how inventions are tested for excluded subject matter in the UK and could harmonise UK law in this regard with EPO case law including how ANNs are assessed for patentability.
In conclusion, the Supreme Court’s decision could have a significant impact on the patentability of computer-implemented inventions, including those involving artificial intelligence, and has the potential to impact innovation in this area in the UK for years to come.
