Daaci - The final Aerotel test

As we all now know, the Aerotel test for assessing patentability in the UK is no more. We are currently waiting for the UK IPO to reassess the application from Emotional Perception following the Supreme Court remitting the case to the Hearing Officer, who first dealt with the application in 2022. Last month's decision in the case of Daaci Limited's Application (BL O/0086/26) was the last time the test will have been used in a decision from the Hearing Officer at the UK IPO. The decision is therefore largely of academic interest, but there are a few aspects that intrigued me, the main one being that the same attorney that handled the Emotional Perception case was also representing the applicant in this case. 

Daaci Limited (previously named Heresy Artificial Intelligence Limited) is a curious entity, and with an interesting patenting history in the UK. They have had some success in patenting inventions relating to automatic musical compositions in the US, with 6 granted US patents to their name so far. Given the subject matter, you might expect their success rate in the UK to be not great. They did, however, manage to get 3 patents granted in 2024, apparently on the back of the High Court judgment in Emotional Perception (which issued in November 2023), but surprisingly all 3 have since ceased due to non-payment of renewals. The company nevertheless continued to pursue two other applications, one of which was decided on last month. Another is currently awaiting a hearing following a request that the case be heard after the Supreme Court decision. 

There are another couple of curious features about Daaci Limited. One is that they have stated their IP assets to have a value of over £12 million, although the company is currently in liquidation. The company is also stated to be a "sister company of Emotional Perception AI Limited" (according to the representative), presumably because they share a company director in the form of Philip Walsh. 

The decision last month related to GB2104696.6. As with the other applications mentioned above (which are divisionals of this one), the application related to a system and method for automatically generating a musical composition based on a "briefing narrative describing a musical journey with reference to a plurality of emotional descriptions for a plurality of musical sections along the musical journey". The system involved a database of musical artefacts that were reduced to constituent elements (termed ‘form atoms’) and linked together based on stored rules to assemble a composition having regard to the briefing narrative and provided as an audible musical output. 

Figure 3 of the patent application. 

As one might expect for such an invention, the examiner objected that the claimed invention was excluded from patentability as being a program for a computer as such. Following the Aerotel test, the examiner assessed the contribution as a system for automatically generating musical compositions using form atoms, which allowed a user to generate a musical composition having musical features such as melodies, harmonies, chords, and rhythms that reflected and conveyed textural descriptions of a supplied briefing narrative. This contribution was found not to be technical. 

Before the Hearing Officer, the representative argued that the invention contained elements that were not merely a computer program but were functional and interacted with physical elements, such as the database storing novel structures as code. The representative also argued that the ‘form atom’ feature was not a computer program per se and the claim as a whole did not therefore relate to a program for a computer as such. A similar type of argument was made by the same representative in the Emotional Perception case, where the arrangement of an ANN was argued not to be excluded under the computer program exception. This argument had some success at the High Court before an obviously very inexperienced judge, but was knocked down at the Court of Appeal and the Supreme Court. 

The Hearing Officer, with knowledge of the Court of Appeal decision, disagreed on this point, and referred to the caselaw in this area that dated right back to Merril Lynch [1989] RPC 561, in which Fox LJ considered that it could not be permissible to patent an item excluded by section 1(2) under the guise of an item which contained it (a similar point was made in Gale's Application [1991] RPC 305). It was instead decisive what contribution the invention made to the known art, for example a substantial increase in processing speed as in Vicom (T 208/84). 

The applicant also argued that the assembly of unique pieces of music was a technical process and that the invention was in the area of musical technology, referring to Article 27 of the TRIPs Agreement, which states "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application". The hearing officer dismissed this argument too, considering that the Aerotel test did not exclude entire fields of technology but stepped through a careful analysis to assess each invention on its merits and determine whether the invention was anything more than those integers excluded under the Act. Incidentally, how this argument was thought to have the remotest chance of success, given that TRIPs dates back over 30 years and all arguments about its effect on patentability in the UK and Europe (which were effectively zero) had been settled at least 20 years ago, is quite beyond me. 

In assessing the contribution and how the invention worked, the Hearing Officer considered that the claimed invention allowed a user to generate multiple alternative compositions quickly, resulting in a more effective way of providing a system to generate a musical composition. The key question was, in analogy with Vicom, whether this composition of music based on an emotional briefing was a technical process. The output had a subjective and cognitive effect on the user in the manner of the aesthetics or emotional impact of the music. This was not considered to be a technical effect outside of the computer but instead was the automation of a creative process. The invention was considered to be a sophisticated and clever way of encapsulating the sort of knowledge, rules and ‘ear’ that a creative composer may possess, but the process being emulated was a creative one that was not technical in the sense that a creative process itself was excluded. The claimed invention was found to fall solely within excluded matter and was not technical. The application was therefore refused.

Given how applications of this type have been assessed over the years using the Aerotel test, the outcome is not at all surprising or unusual. How would such an application fare in light of the abandonment of Aerotel and with the (as yet officially undefined) new test that should instead incorporate the concept of technical character from the EPO problem-solution approach? Readers will know that I have proposed just such as test, which involve six steps so that the EPO approach can be combined with the UK Pozzoli approach to inventive step. The following is an abbreviated attempt to figure out how the application might be assessed, and if it would make any difference to the outcome. 

Claim 1 of the application in the form placed before the Hearing Officer is as follows:

1. A computer-based auto-generative composition system, comprising:

an input coupled to receive a briefing narrative describing a musical journey with reference to a plurality of emotional descriptions for a plurality of musical sections along the musical journey;

a database comprising a multiplicity of Form Atoms having self-contained constructional properties within metadata associated with the Form Atom and where the self-contained properties are derived from an historical corpus of music and where each Form Atom has:

a generative set of heuristics that support generation of a set of chords in a chord scheme or many different sets of chords in the same or different tonics that achieve the same form function and which thus have similar associated emotional/musical connotations, and heuristics that space out temporally any number of generated chords for any given length of musical time;

a tag that describes compositional heuristics of its respective Form Atom;

a chord list in a local tonic where the chord list defines branching structures giving options for generation of different chords from the local tonic, and a progression descriptor in combination with a form function that expresses musically one of a question, an answer and a statement, and wherein the metadata creates a meta-map of a chord scheme in a musical section that is linkable to one or more secondary Form Atoms in generation of a musical composition in which, upon automated selection and concatenation of musically related Form Atoms by a computing system operationally arranged to identify and select different Form Atoms, musical good form is established in the generative composition based on compatible heuristics, chord lists and progression descriptors of each Form Atoms selected for adjacent concatenation, and wherein musical good form is compliant with conventions in accepted musical composition and musical good form contrasts with musical bad form in which there is no obvious or known linking that makes any discernible musical sense between successive musical phrases and in which musical bad form fails to communicate structure because sound signals cannot logically be processed into a sensually resolvable anticipatory order;

wherein musical transitions between Form Atoms are mapped to identify and then record established transitions between Form Atoms in multiple original scores and such that, within the system, groups exist in which Form Atoms are identified as having similar tags but different constructional properties; and

processing intelligence, within the system, responsive to the briefing narrative and coupled to the database, wherein the processing intelligence is arranged to:

assemble, automatically, a generative composition having regard to the briefing narrative through selection and concatenation of Form Atoms having tags that align with emotional descriptions timely required by respective ones of the plurality of musical sections; and

select and substitute Form Atoms into the generative composition, the substitute Form Atom:

derived from the historical corpus of music; and

having its compositional heuristics aligned with the emotional descriptions; and wherein

the processing intelligence is further arranged to cause output of the auto-generative composition as musical output created from applied heuristics within a texture generator of the generative system, said texture generator arranged to select and apply

musical instrumentation and arrangements to sequential chord schemes, formed from Form Atoms selected to generate a harmonic palette, for orchestration of the auto-generative composition and whereby the musical output is made audible from a speaker

receptive of the musical output; and

generating automatically a different generative composition in response to at least a change in the briefing narrative.

The claim is very long and is hardly a model of clarity, having many features that appear to serve no purpose other than to provide obfuscation. The overall gist, however, appears to be reasonably clear, which is that the claimed invention is about automatically generating a musical output from a briefing narrative with use of a database of 'form atoms'. 

Step 1: construe the claimed invention and determine the technical character

Claim 1 defines a "computer-based auto-generative composition system", which comprises an input to receive a briefing narrative, a database with various features, and a "processing intelligence" responsive to the briefing narrative and coupled to the database, which is arranged to cause a musical output based on heuristics in the database. The claimed invention has technical character because it involves computer hardware on which the system is provided, which receives an input and generates an output. The initial hurdle is therefore overcome, and the invention is not excluded for being a computer program as such. 

Step 2: Determine the closest prior art

This was not determined in the Hearing Officer decision, but WO 2009/036564 A1 was cited during prosecution and discloses a similar type of system in the form of a "flexible music composition engine", which generates music in real time based on provided inputs, and uses an "emotional mapper" to generate musical lines and harmonic patterns. This seems a reasonable starting point, at least to establish that computer-implemented musical generating tools are known. 

Step 3: Determine the features that contribute to the technical character

Both the input and output are in the form of cognitive information relating respectively to literary and musical works, which cannot themselves contribute to the technical character of the invention. The computer on which the system operates has technical character, so any feature of the computer could in theory contribute to the overall technical character of the invention, although as we have already established this would need to contribute to improving the computer itself in some way, given that the output is not technical. 

Step 4: Identify the inventive concept

The inventive concept outlined in the description (under the summary of the invention, pages 11-12) relates to a generative composition system that reduces existing musical artefacts to constituent elements, which are linked together through Markov chains. To provide a new composition, a set of heuristics define how musical sections are concatenated following a supplied briefing narrative. 

Step 5: Identify what, if any, differences exist

The features of the invention that could in theory contribute to the technical character, i.e. the computer as a whole or the database and processing intelligence operating on the computer, are not defined in claim 1 in a way that operates on the hardware level but as descriptive and functional elements that relate to heuristics and metadata, and therefore relate only to subjective cognitive features that would be implemented as a program for a computer to output a musical composition. There are therefore no features in claim 1 that could support novelty or inventive step over the closest prior art, even if there are any differences in how the system operates. 

Step 6: Would these differences be obvious to the skilled person?

There is no need to answer this because there are no features that can support even novelty, let alone inventive step. 

In conclusion, the claimed invention is not patentable because there are no features that can support novelty or inventive step over the prior art. The application would therefore be refused under this new test, although the reasoning is a bit different. 

A Supreme Court Fudge - 6 Steps for Emotional Perception

As everyone knows by now, the Supreme Court handed down its judgment in the Emotional Perception case last week. There is plenty of commentary around on the judgment itself, so I won't go into the detail of it here. For background, I wrote about the case at the UK IPO stage in the September 2022 CIPA Journal, at the High Court here and at the Court of Appeal here. In brief, the invention is about the use of an artificial neural network (ANN) to compare two media files to determine how similar they are semantically, the main described application being for recommending a music track based on similarities with other music tracks. The application was refused by the UK IPO Hearing Officer in June 2022. The applicant then appealed to the High Court, which overturned the decision (and in my opinion got it completely wrong - see here for why). The Court of Appeal then reversed this finding (correctly in my view) and the Supreme Court has upheld in part the Court of Appeal's decision but decided that now is the time to abandon the Aerotel approach for determining patentability. What this is to be replaced with, however, is not yet clear. 

A new hurdle and some steps. 

Upon finding that the EPO's "features which contribute to the technical character" approach to assessing patentability, as set out on G 1/19, was to be preferred to the Aerotel "technical contribution" test, rather than setting out a new test the Supreme Court decided to send the case all the way back to the UK IPO Hearing Officer to consider the matter. Given that the assessment of inventive step as set out in Pozzoli was explicitly not overturned, the Hearing Officer now has the task of figuring out how to put together (in what the UK IPO argued would be a "Frankenstein monster") a test that takes parts of the EPO's problem-solution approach as applied to patentability and combines these with the Pozzoli test for inventive step. Presumably novelty will also need to be assessed somewhere along the way. How to do this, however, is not at all obvious, and no suggestions were made as to how to do this from either the applicant's representatives or from the contributions made by CIPA and the IP Federation. Regardless of what the IPO now come up with, the result will inevitably be further discussion and arguments about whether the test is correct and how to apply it. It may even end up in a further appeal that could go all the way back up to the Supreme Court, although more likely will end up at the Court of Appeal again, where a new test will be settled. All this is bound to take some time. 

For the time being, we have to try to figure out what all this means in terms of the test we have to apply. To a first approximation, given that the main gist of the Supreme Court's decision was to make the UK approach more in line with that at the EPO, it would be reasonably safe to assume that following the EPO's problem-solution approach will more or less work, although some parts will need to be adjusted to align with UK law. Taking the relevant parts from the EPO approach, as set out in T 258/03 (Hitachi), T 641/00 (Comvik) and T 154/04 (Duns Licensing) and combining this with the Pozzoli four-step test for inventive step, a possible test could be something like the following.

1. Construe the claimed invention and determine its technical character. This is a necessary first step because it establishes whether the claimed invention gets over the Article 52(2) / Section 1(2) 'hurdle', as for example set out in Hitachi. This is a low bar, as the presence of any hardware (even pen and paper) will enable a claimed invention that would otherwise be excluded to get over the hurdle. The step is also necessary to establish what the nature of the technical character of the claimed invention is, as this will need to be looked at later. 

2. Determine the closest prior art. This is step 1 of the Pozzoli test, and includes an assessment of the identity of the skilled person and their common general knowledge. It also corresponds to the first step of the problem-solution approach, although we are not going to use this to assess what technical problem is to be solved. 

3. Determine the features of the claimed invention that contribute to the technical character. This is a requirement that was set out in Comvik, which applies to so-called 'mixed' inventions, i.e. those comprising a mixture of technical and non-technical features. 

4. Identify the inventive concept. This is step 2 of the Pozzoli test, but with the difference that only those features that contribute to the technical character (step 3) can contribute to the inventive concept. This requirement is set out in part (F) of the summary in G 1/19 of Duns (point 30 of the reasons), in which features that do not contribute to the technical character of the invention are to be ignored for assessing both novelty and inventive step. 

5. Identify what, if any, differences exist. This is step 3 of the Pozzoli test, but again adapted such that only those features identified as being part of the inventive concept can be taken into account. If there are no such features, the claimed invention is not patentable. 

6. Would these differences be obvious to the skilled person? This is the final step of the Pozzoli test, in which any differences, if these have been identified at step 5, are assessed in light of what the skilled person knows and would find obvious. Even if an invention has been found to have features that do contribute to the technical character, they could still be found to be obvious in light of what the closest prior art is and what the skilled person is presumed to know. 

The above is only a first pass at what I guess the new test will need to involve. The details and the particular order in which some of the steps are taken may vary (steps 1 and 2, for example, could probably be done the other way around) but I think all of these steps will be needed in some form to take into account everything required for an assessment of patentability that also includes novelty and inventive step. 

Although all the Court of Appeal level decisions on patentability leading up to Aerotel are to be abandoned, some other features of existing UK case law may usefully be taken into account, for example the 'signposts' set out in AT&T/CVON (not mentioned in the Supreme Court decision), which could apply when considering step 3. Although these signposts were provided to help decisions on the final Aerotel step, i.e. whether the contribution is technical, they should also be useful for assessing whether any feature contributes to the technical character of the invention since similar criteria apply. 

We will have to wait and see what the UK IPO come up with, but I think it will have to be something along these lines. If they do come up with something similar, in the particular case in question my educated guess is that the claimed invention will probably not get past step 3 or may fail at step 5. I think it very unlikely that it will get all the way to step 6. I also think that, whatever happens, the boundary of what is patentable in the UK will not get significantly extended as a result.

G 1/25 Amicus Briefs - A Brief Summary

Following up from my earlier post about the referral to the Enlarged Board, now that the period for filing written submissions (or 'amicus briefs') has passed, I have reviewed the various submissions that have been filed. Some are very long, and I have reviewed many of them only briefly, although I hope that the EB will review each of them in detail because there are some important points raised. For now, it is interesting to note that, although there is no consensus on the issue (otherwise there would be no need for a referral), there appears to be a strong majority view that Question 1 should be answered with a 'no'. This is, however, not about a democratic vote and the EB will have to come to their decision based on what they think is correct, not what the majority view may be.

Based on a total of 39 submissions filed and visible on the EP register as of today (4 February 2026), including a couple that appear to have been filed late, 27 have suggested an answer of 'no', while only 8 say 'yes'. A few others either provide no answer or are somewhat vague about what the answer should be. The table below is a list of all submissions that I have found (excluding those from the parties to the case), with their proposed answers (where this is discernible), and the pie chart here shows the answers to Question 1.

Many of the submissions make interesting points, some of which are expressed in stronger terms than others, while others carefully sit on the fence or even fail to come to any clear conclusion. It should be remembered that Question 1 does demand a clear answer. It either is, or is not, necessary to comply with the requirements of the EPC to adapt the description to amended claims so as to remove an inconsistency. While there are certainly arguments to be had either way, including what is meant by an 'inconsistency', a clear 'yes' or 'no' is in the end required because it is of primary importance for the EB to be able to come to a clear conclusion on what the EPC actually requires applicants and proprietors to do, and what the EPO is permitted to require them to do. Sitting on the fence, or coming up with reasons based on vague principles that are not actually set out in the EPC, is simply not good enough. 

It would take me far too long to set out in detail all the arguments put forward in the various submissions, most if not all of which have already been made many times over the past few years. Some of the submissions are, however, in my view worth looking at in more detail because they raise interesting points, are well written, or are provocative one way or the other. The following is a very brief selection from the submissions, with links that should hopefully take you directly to the document on the EP register if you want to see more. 

In characteristic American style, AIPLA put forward a combative set of submissions, the main point being that adaptation of the description is an "administrative construct developed originally as a housekeeping measure". This seems to get to the core of what has happened over the past few years, as the EPO has become more strict on adapting the description to the claims. A requirement that was previously typically only one that involved adapting the summary of invention to say something like "the invention is defined in the claims" has gradually become more and more onerous on applicants where the current requirements (although inconsistently applied) force applicants to comb through the entire specification to adjust wording wherever the word "invention" or "embodiment" is used, or even delete entire sections, to appease the examiner. This view is concurred with by Bardele Pagenberg, who state that "Using the concept of consistency as a yardstick for support is in our view wrong and not in accordance with the EPC", and also refer to adaptation of the description being a housekeeping issue. Others further support the point by referring to adaptation of the description being a burden on applicants, with BIA (the UK Bioindustry Association) expressing concern with compulsion, where examiners enforce a mandatory requirement to adapt the description, causing additional cost and uncertainty. Canon Inc go further, saying that "the practice of aligning the description with the claims accepted for grant serves no useful purpose", a point that is matched by the submissions from JEITA and Richardt Patentanwalte, while Ericsson state that "it is not the purpose of opposition and opposition appeal proceedings to tidy up the description". 

Greenwoods make a couple of important points, one being that "if the claims are clear despite the description no amendment to the description appears to be necessary", another being that "it should be up to the applicant proprietor to decide whether to amend the description or the claims to remove inconsistencies that cause genuine difficulty in determining the scope of the claims" (a point which I also made in my thoughts, which were expressed in the submissions from UNION-IP). Another important point is raised in submissions from the IP Federation that support under Article 84 EPC is about "ensuring the invention is sufficiently described to justify the scope of the claims. It does not extend to the reverse" (which is similar to my point about the requirement being unidirectional). A similar point is made by the pseudonymous submissions from "Jackson Lamb", who states that "The support requirement should not be interpreted to require a one-to-one correspondence between the claims and the description". 

A common theme, of course, with all of the above, among others, is the view that there is no requirement of the EPC that mandates amendments to the description. This is, however, not shared by some of the other submissions. The strongest submissions from those who answer 'yes' to Question 1 appear to be from Bugnion, Patentanwaltskammer and (unsurprisingly) from the EPO President, all of which refer to Article 84 EPC as being the primary basis for setting a requirement for description amendments. Bugnion argue that "supported by the description" in Article 84 sets a "mandatory requirement on the description to disclose a solution that is consistent and not in disagreement with the claims", while the EPO President goes further with a public policy type argument about the purpose of Article 84 EPC, which is apparently "to ensure that the public is not left in any doubt as to which subject matter is covered, and which is not". Patentanwaltskammer further argues that "Once it is accepted, following G 1/24, that the description forms an integral part of the framework for claim interpretation under Article 69 EPC, the consistency of the patent text becomes mandatory. A patent text that contains contradictory statements cannot reliably fulfil its function as a basis for interpretation of the claims". This does, however, raise the question of whether it is the patent as granted that should be used for interpreting the claims or, as some would argue, the patent application as filed. 

The submission by Samson & Partner, on behalf of Apple Inc, raises the possibility again of Angora cats (see here for some of my comments relating to this fictional animal), arguing that they "should not be unnecessarily bred and nurtured" by not amending the description to match the claims. Another large patentee Roche, however, argues that this should not be the job of the EPO, and that "the Boards must apply legislation, not act as legislator", also referring to G 1/24. 

Finally, there are a few that stand out for their fence-sitting and vagueness, some of which fail to come to any clear answer to Question 1. Most disappointingly (for me at least) are those from CIPA, who fail to answer with a clear 'no' and instead state that "It is not generally necessary for the description to be adapted to the allowable set of amended claims" (my emphasis). Well, is it or isn't it? Another from Martin Wilming refuses to answer the question at all, and just refers to a previously published article that is clearly against the idea of mandatory description amendments, in which case it is odd that a clear answer is not provided. 

Question 1 is, of course, the most important one to answer. For those that answer 'no', Question 2 then obviously falls away. For those who answer 'yes', however, it is useful to note the justifications that are made for support in the EPC. The most common is Article 84, while other provisions such as Rule 42(1)(c), Rule 48(1)(c) and Article 69 are also mentioned. Question 3 is largely of little concern, with the vast majority simply stating that the same rules should apply in examination as for opposition (although with the proviso that Article 84 works differently, given that it is not a ground of opposition). 

In summary, I think the EB have plenty of arguments, some of them good, to review and work with. I hope they do take them all into account and come up with the correct decision. We may have a while to wait though, and I expect the decision when it does come is going to be a very long one.

Amicus	Question 1	Question 2	Question 3
AIPLA	No	None	No
Bardele Pagenberg	No	None	No
Bayer AG	No	No answer	No
BIA (UK BioIndustry Association)	No	Not applicable	No
Bugnion	Yes	A84, R42(1)(c), R48(1)(c)	No
Canon Inc.	No	No answer	No
CIPA	Vaguely no - “not generally necessary”. Does not answer the question.	No answer required	No
CPI	No	No answer needed	No
D.X. Thomas	Yes	Article 84 and Rule 42(1)(c) EPC	No
EFPIA	No	No answer needed	No
EP&C Patent Attorneys	Yes	A84, A69 EPC	-
epi	No	A84 does not provide legal basis	No
EPO President	Yes	A84, R42(1)(c), R48(1)(c)	No
Ericsson	No	None	No, except for additional focus on A84 during examination
ETH Zurich	No	None recognised	No
FEMIPI	No	No legal basis	No
FICPI	No, provided the subject-matter does not explicitly refer to the claims.	No answer	No, but applicant/proprietor should be given an opportunity to amend.
Francis Hagel	No	No answer	No
Greenwoods	NO (in capitals and bold)	No requirements of the EPC require such adaptation	No
GRUR	No answer	No answer	No answer
IP Federation	No	No provision in the EPC that mandates adaptation of the description	No
IPO (Intellectual Property Owners Association)	No	No requirement of the EPO necessitates such an adaptation	No
“Jackson Lamb”	No	No answer needed	No
Japan Intellectual Property Association	No	Does not apply	No
JEITA	No	No answer necessary	No
Martin Wilming	No answer	No answer	No answer
Michael Stadler et al	No	No answer	No
Michael Snodin	No	No need to answer	No
Ordine Dei Consulenti in Proprieta Industriale	No	No answer needed	No
Patentanwaltskammer	Yes	A84, A69	No
Patentwerk B.V.	Yes	A84, 82, 53, 52(2) EPC	-
Peter De Lange	Yes	R48(1)(c)	No
Richardt Patentanwälte	No	No answer	No
Roche	No	No basis	No
Roy Marsh	No	No answer	No
Samson & Partner (Apple Inc.)	Yes	A84 (?)
Siemens	No	No answer needed	No
UNION	No	No answer needed	No
VPP	No	No answer	No