In February 2026, the United Kingdom Supreme Court handed down a landmark decision in Emotional Perception AI Ltd v Comptroller General. While the case was decided in the UK, it has important implications for South African engineers, data scientists and software entrepreneurs working with artificial intelligence.

A quick recap of the UK case:

Emotional Perception AI developed an artificial neural network that recommends music based on emotional similarity rather than human‑assigned genres. In simple terms, the system recommended music that would produce a similar emotional response in the listener to a song they already liked, instead of using categories like rock, jazz, etc. or collaborative filtering (“people who liked this also liked…”).  The idea was simple in concept, but technically ambitious: infer emotional similarity directly from the audio signal by analysing objective physical features like tone, timbre, tempo and speed.

The UK Patent Office initially rejected the patent on the basis that it was “just a computer program”. That phrase has quietly defeated a great many software patents over the years. After several appeals, the UK Supreme Court ruled that AI systems implemented in software are not automatically excluded from patent protection, even though they involve computer programs.

The court aligned UK law with European patent practice, recognising that real‑world AI systems running on hardware can, in principle, qualify as patentable inventions.

Why does this matter in South Africa?

South Africa’s Patents Act also excludes a “program for a computer … as such” from patentability. However, the wording hides an important nuance. Like the UK law, software is only excluded to the extent that the invention consists solely of software, without any technical contribution beyond the program itself.

Where exactly that boundary lies is still unclear in South Africa. Unfortunately for lawyers - and sometimes engineers - our courts have not yet had the opportunity to wrestle with that question directly. In situations like this, South African courts often look to UK and European case law for guidance. This makes the Emotional Perception AI decision particularly relevant to how AI patents are perceived locally.

How does patenting work in South Africa, and why should engineers care?

South Africa currently has a non‑examining patent system. This means that patents are granted without investigating whether the invention is truly new or inventive. As a result:

• You can obtain a patent for an AI‑related invention in South Africa.
• However, the real test comes later, when you try enforce the patent or if it is challenged in court.
• The responsibility for ensuring the patent is valid lies largely with the patentee.

For AI and software inventions, this makes it essential to draft patents carefully so that they describe a technical solution to a technical problem, not just an abstract algorithm or business idea.

What kinds of AI inventions are more likely to work?

Applying current international law including the Emotional Perception AI Ltd case - AI pure algorithms or models and AI applied to business methods are less likely to survive a validity challenge in South Africa while AI used in a system or process is far more likely to be held valid. 

Examples that are more defensible include:

• AI that improves data processing speed, storage efficiency or signal handling.
• AI integrated into medical devices, industrial systems, sensors or control systems.
• AI that changes how a computer or machine operates at a technical level.

Put in simple terms, AI that provides a technical solution to a technical problem is likely to be regarded as a patentable invention. While simply automating a known manual process using AI is unlikely to be enough on its own.

Practical takeaways for South African engineers and developers:

1. Think beyond the model: focus on how your AI system technically works in the real world.
2. Document technical benefits early: improvements in performance, efficiency or system behaviour are important.
3. File early, but wisely: South Africa’s system makes early filing easy, but it is important that the patent is drafted properly. Be sure to use patent attorneys that work regularly in the field of patenting AI inventions.   
4. Watch legal reforms: South Africa is moving towards substantive patent examination, which could significantly affect AI patents in the near future.

The Emotional Perception AI case is not really about music at all. It is about where the law draws the line between intelligent software and patentable technology.

Of course, engineers sometimes believe that if something works brilliantly, the brilliance should be self-evident. Patent law, unfortunately, does not always share that optimism – it tends to favour inventions that solve technical problems in technical systems, not elegant algorithms that make for good business.

Written by Lance Abramson, Partner at Spoor & Fisher