11 February 2026
In a unanimous judgment handed down today, the UK Supreme Court allowed the appeal in Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3, fundamentally shifting the UK's approach to patenting computer-implemented inventions such as those using Artificial Neural Networks (ANNs).
As background, interested readers will recall that this case relates to the question of whether it is possible to patent a system which uses an ANN in the UK, in view of the “programs for computers” exclusion enshrined in UK patent law. Initially, the application was refused by the UKIPO Hearing Officer due to falling within the exclusion. The High Court then overturned this decision, before the Court of Appeal reinstated the Hearing Officer’s original decision. The case was then appealed to the UK Supreme Court.
It is noteworthy that all of the decisions thus far applied the guidance from the landmark judgment by the Court of Appeal in Aerotel Ltd v Telco Holdings Ltd, which has resulted in the application of a so-called Aerotel test for assessing exclusions from patentability for around two decades.
In a landmark ruling, the UK Supreme Court has ruled that the Aerotel test should no longer be followed in the UK. The Court has instead affirmed the “any hardware” approach used by the European Patent Office (EPO) in making the exclusion from patentability assessment. Thus, whilst the Court expressly states that an ANN constitutes a "program for a computer", in adopting the “any hardware” approach, the Court rules that an ANN is not excluded from patentability "as such" because it can only be implemented using computer hardware, so it satisfies the “any hardware” test. This principle would appear to apply to any other form of computer-implemented invention. Because of the abolishment of the Aerotel test, the Court stipulates that the lower UK courts and the UKIPO will now need to apply an “intermediate step” where certain features of an invention are filtered out prior to the assessment of novelty and inventive step. The Court refused to set out how that intermediate step should be applied, and instead refers the case back to the UKIPO Hearing Officer to apply the intermediate step and the requirements of novelty and inventive step to this case.
This decision thus marks a significant departure from two decades of UK case law and brings the UK Intellectual Property Office (UKIPO) into closer alignment with the European Patent Office (EPO).
The appeal focused on the interpretation of Section 1(2)(c) of the Patents Act 1977, which excludes computer programs from protection. The Court addressed three primary issues:
Issue 1: The Aerotel Test or a New Framework in the UK
The Court held that the long-standing Aerotel test, the cornerstone of UK practice since 2006 should no longer be followed. Instead, the UK will adopt the "any hardware" approach established by the EPO and expressly endorsed by the Enlarged Board of Appeal of the EPO in G1/19. This means that if a claimed invention involves the use of physical hardware (even a standard computer), it qualifies as an "invention" in the first instance, and is thus not excluded from patentability. This should help reduce the number of ‘excluded from patentability’ objections faced by applicants at the UKIPO.
Issue 2: The Definition of ANNs and their Exclusion from Patentability
The Court clarified that an ANN is a "program for a computer," defining a "program" as a set of instructions used by a machine to manipulate data. This broad definition ensures the law remains technology-neutral, covering analogue and quantum systems as well as digital ones. The Court thus appears to confirm that an ANN (and other computer programs) are excluded from patentability if they are claimed “as such”. However, the Court also appears to acknowledge that an ANN (and other programs) may nevertheless be taken into account in the assessment of novelty and inventive step if the ANN (or program) contributes to or interacts with the technical character of the invention.
Issue 3: A New Assessment of Computer-Implemented Inventions in the UK
Because the claimed invention involves an ANN implemented on computer hardware, the Court found it possesses the necessary "technical character" to be considered an invention. This effectively lowers the initial barrier to patentability for AI and other software-based technologies in the UK. The Court instead confirms that an “intermediate step” should be applied by the UKIPO and lower UK courts, to filter out features which do not contribute to, or interact with, the technical character of an invention, before making an assessment of novelty and inventive step for only those features that make it through this filter. Because the Court has refused to provide guidance on what this step should look like, instead choosing to leave the development of the step to the UKIPO and lower courts, there is some uncertainty on how the law in the UK will develop over the next few years. It may well be the case that the UK aligns its practice more and more closely with that of the EPO, and may make use of the established COMVIK test used at the EPO to help with filtering out of features from claimed inventions.
The first application we should see of this new step should be in Emotional Perception, due to the Court referring the case back to the UKIPO Hearing Officer to apply this step. Thus, we will now wait to see how the UKIPO determines if the specific features of the invention, which provide a benefit of a "subjective" or "cognitive" improvement (such as better emotional music recommendations), contribute to the technical character of the invention as a whole.
Implications for IP Practitioners and Clients
This ruling provides much-needed clarity for the UK's technology sector. By trying to match UK practice with the EPO’s G 1/19 decision, the Court has seemingly attempted to reduce the risk of divergent outcomes for the same invention across different European jurisdictions.
However, the "Intermediate Step" remains an untested area of UK law and it remains to be seen how this step will be applied and develop over the coming years. We expect the UKIPO to issue revised examination guidelines shortly to reflect this pro-innovation, yet technically rigorous, stance.
Read more regarding the judgement here: https://supremecourt.uk/cases/uksc-2024-0131#judgment-details