UK Supreme Court’s Emotional Perception ruling demotes Aerotel, leaves door open to AI inventions, but hurdle remains high

Context:

• Patent-eligibility is a coarse filter in the practical application of the European Patent Convention’s exclusion of computer programs “as such” from patentable subject matter. The key battle is typically at the level of claim elements.
• In Emotional Perception AI v. Comptroller General of Patents, Designs and Trade Marks, the UK Supreme Court (UKSC) had the task (and the opportunity) to harmonize UK case law on patent-eligible subject matter (Aerotel) with the case law of the European Patent Office (EPO; particularly decision G1/19), and to give guidance on what test(s) to apply.
• The patent application at issue relates to the use of an artificial neural network (ANN) for the purpose of similarity-based recommendations of video, static image, audio, or text files, with similarity having an “emotional” component (as the applicant’s name indicates as well), i.e., the question of how certain media content is perceived by humans is a key consideration.

What’s new: Today the UKSC handed down its judgment. The matter goes back to the UK Intellectual Property Office (IPO) as the patent application in question surmounts the low hurdle of patent-eligible subject matter. The UK’s own Aerotel test, which is considered subtractive (one might also call it “filtration”) and harder for software-related patent applications to pass, is demoted in favor of a more EPO-aligned holistic approach. As explained below, this is nevertheless a tribute to Retired Lord Justice Professor Sir Robin Jacob.