Since the UK Supreme Court’s judgment in Emotional Perception AI v Comptroller-General ([2026] UKSC 3, 11 February 2026), AI and software patentability in Europe follows one logic in both the UK and the European Patent Office: a claim that uses any hardware is an “invention”, and the real test is whether its technical features make an inventive contribution. The Court abandoned the UK’s Aerotel test, held that an artificial neural network is a computer program, and sent the application back to the UK Intellectual Property Office. This guide explains what changed and how Latin American technology companies should draft AI and software applications aimed at Europe and the UK.
Key takeaways
- The UK has stopped applying Aerotel and follows the EPO’s “any hardware” approach from G 1/19.
- A trained artificial neural network (ANN) is a “program for a computer”, but a claim involving hardware is not excluded at the threshold.
- The decisive question moves to the next step: which features have technical character, and are they inventive?
- Non-technical features, such as business or aesthetic aims, do not count towards inventive step.
- Brazil, Mexico and the Andean Community still exclude computer programs as such, so one application has to satisfy several tests.
What did the UK Supreme Court decide in Emotional Perception?
Emotional Perception’s application claimed a system that recommends media files, such as music, using an artificial neural network trained so that files which people describe in similar terms, including the emotions they evoke, end up close to each other. The UKIPO refused it as a computer program as such; the High Court allowed the appeal; the Court of Appeal restored the refusal. The Supreme Court allowed the appeal on different reasoning. According to the judgment published by the National Archives and Linklaters’ analysis, it held that:
- The Aerotel four-step approach, used in the UK since 2006, should no longer be followed, in light of the EPO’s decision G 1/19.
- A claim involving the use of hardware is an invention under Article 52 EPC and section 1(2) of the Patents Act 1977, so the exclusion does not apply at that first stage.
- An ANN, including its topology, weights and activation functions, is a program for a computer.
- Features that do not contribute to technical character are then set aside when novelty and inventive step are assessed (the EPO’s “intermediate step”).
- Inventive step may still be assessed with the familiar UK Pozzoli structure.
The Court did not decide whether Emotional Perception’s invention is inventive. It remitted that question to the UKIPO.
How does the “any hardware” test work at the EPO?
The EPO separates two questions. First, is the claimed subject matter an invention? Under the approach the Enlarged Board of Appeal confirmed in G 1/19 (10 March 2021), the answer is yes whenever technical means, such as a computer, are involved. Second, is it inventive? Under the COMVIK approach (T 641/00, 26 September 2002), only features that contribute to the technical character count, and a non-technical aim can appear in the problem as a constraint given to the skilled person.
For AI, that means an algorithm is assessed through what it does technically: controlling a device, processing images or sensor signals, or being adapted to specific hardware. A model that only improves a business, financial or aesthetic result will usually pass the first hurdle and fail the second.
AI and software patentability in Europe and Latin America compared
| Office or region | Legal exclusion | How it is applied in practice |
|---|---|---|
| EPO (European patents, including Spain and the Unitary Patent) | Programs for computers “as such” (Art. 52(2) and (3) EPC) | Any hardware passes; inventive step counts only technical features (G 1/19, COMVIK) |
| United Kingdom | Same wording (Patents Act 1977, s. 1(2)) | Aligned with the EPO since February 2026; inventive step via Pozzoli |
| Brazil | “Computer programs per se” (Law 9,279/1996, Art. 10(V)) | Our recommendation: frame claims as a method or system with a technical effect, not as the program itself |
| Mexico | “Computer programs” (LFPPI, Art. 47(V)), excluded only when claimed as such or in themselves | The claim has to be framed as a technical method or system, not as the program itself |
| Andean Community (Colombia, Peru, Ecuador, Bolivia) | Computer programs or software “as such” (Decision 486, Art. 15) | Similar “as such” logic, applied by each national office |
The sources for the Latin American exclusions are Brazil’s Industrial Property Law, Mexico’s Federal Law for the Protection of Industrial Property and the Andean Community’s Decision 486. The wording differs, and so does each office’s practice, which is why one claim set rarely fits every office without adjustment.
How should you draft AI and software claims for Europe, the UK and Latin America?
After Emotional Perception, the same drafting discipline serves the EPO and the UK, and it also helps in Latin America:
- Describe the technical problem and the technical effect in the application as filed, with data where possible. Effects added later are hard to rely on.
- Tie the model to a technical purpose (what it controls, measures or processes) or to a specific technical implementation (how it uses memory, processors or sensors).
- Explain the training data, architecture and training steps where they serve the technical purpose, not only the result.
- Keep business and user-experience benefits in the description, but do not depend on them for inventive step.
- Draft method and system claims, and check each office’s practice on claims to a program or storage medium.
What this means for your business
For a Latin American technology company, the European route usually starts at home: a first filing in Brazil, Mexico, Colombia or Chile, a PCT application within 12 months, then the EPO and, separately, the UK. The priority application is the text that every later office will judge, so it has to be written to EPO standards from day one.
- Before the first filing, map the technical effect of the AI feature and record the supporting data.
- Draft once for the strictest office (usually the EPO) and adapt the claims for each national phase.
- Include the UK in the plan: its practice is now close to the EPO’s, and it is outside the Unitary Patent.
- Decide what stays as a trade secret, such as training data or model weights you do not need to disclose.
If you are planning protection for an AI product across both regions, our software and AI patent team for Europe and Latin America can review the technical effect before you file, and our AI and digital assets practice covers the related questions on data and models.
Where companies get AI patents wrong
- Reading Emotional Perception as an open door. Clearing the “invention” hurdle is easier; inventive step is not.
- Filing a thin priority application with the result but not the technical means, and trying to add them later.
- Relying on commercial advantages, such as better recommendations or more sales, as the inventive contribution.
- Using the same claims in every office without checking the Brazilian, Mexican or Andean exclusions.
- Disclosing the product before filing, which destroys novelty in most of these jurisdictions.
Each of these errors appears at examination, sometimes years after filing, when the original text can no longer be improved.
Frequently asked questions
Can you patent AI software in Europe after Emotional Perception?
Yes, if the claimed invention makes a technical contribution that is new and inventive. The EPO and, since the UK Supreme Court judgment of 11 February 2026, the UK accept that a claim using hardware is an invention. The examination then focuses on whether the technical features, not the business aims, are inventive.
Is a neural network a computer program for patent purposes?
Yes, according to the UK Supreme Court in Emotional Perception: a trained artificial neural network is a program for a computer. That does not prevent protection, because a claim that involves hardware passes the first hurdle. The question is whether the network’s technical features make an inventive contribution.
Does the same approach apply in Brazil and Mexico?
Not exactly. Brazil excludes computer programs per se, Mexico excludes computer programs when claimed as such, and the Andean countries exclude software as such. Inventions with a technical effect may still be protected as methods or systems, but each office applies its own practice, so claims usually need adapting at national phase entry.
Can IP Global Guard handle AI patent applications in Europe and Latin America?
Yes. We prepare and coordinate the priority filing, the PCT application and the national and regional phases, working with European patent attorneys before the EPO and with qualified correspondents in the UK and Latin America, from a single point of contact and with one strategy for the whole family.
How IP Global Guard can help protect your AI product
Emotional Perception aligned the UK with the EPO, but it also made clear where AI patents are won or lost: in the technical contribution described on the day of filing. IP Global Guard, the IP services line of META Channel Corporation Limited, coordinates patent portfolios across more than 25 jurisdictions in Europe, Latin America and Africa, with one billing relationship. Within the same group, META Channel advises on the EU AI Act.
Send us a short description of your AI feature, what it does technically and the markets you are targeting. We will assess patentability in Europe, the UK and Latin America before you file. Ask our team for a patentability review.
This article is general information, not legal advice, and does not replace an assessment of your specific invention.
Sources
- UK Supreme Court, Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3 (11 February 2026), via the National Archives
- Linklaters, Emotional Perception AI: Supreme Court overhauls decades of UK case law (13 February 2026)
- EPO Enlarged Board of Appeal, G 1/19 (10 March 2021)
- EPO Board of Appeal, T 641/00, COMVIK (26 September 2002)
- Brazil, Law 9,279 of 14 May 1996 (Industrial Property Law)
- Mexico, Federal Law for the Protection of Industrial Property (consolidated text, last amendment 3 April 2026)
- WIPO Lex, Andean Community Decision 486 (14 September 2000)
