Supreme Court overhauls UK patent law for AI: Emotional Perception AI v Comptroller General [2026]

What was the case about?

Emotional Perception AI Ltd applied for a patent for a system and method using an artificial neural network (ANN) to provide content recommendations. The invention trained an ANN to replicate the similarities and differences a human might subjectively perceive between media files, such as music tracks, videos or text, by reference to objectively measurable physical properties of those files. The commercial purpose was to enable recommendation services that could identify content likely to elicit a similar emotional response to something the user already likes.

The UK Intellectual Property Office (UKIPO) rejected the application on the ground that it fell within the exclusion for “programs for computers ... as such” under section 1(2)(c) of the Patents Act 1977, which implements Article 52(2)(c) of the European Patent Convention (EPC). The High Court disagreed, holding that an ANN was not a program for a computer. The Court of Appeal reversed that decision. See our previous articles on these decisions here and here.

Under Article 52, patents will only be granted for inventions that are new, involve an inventive step and are susceptible of industrial application. Certain subject matter shall not be regarded as inventions, including “programs for computers”, meaning they are not patentable. However, the exclusion applies only to the extent to which an application relates to such subject-matter or activities “as such”.

Since 2006, UK courts and the UKIPO have applied the four-step approach laid down by the Court of Appeal in Aerotel Ltd. v Telco Holdings Ltd & Ors Rev 1 [2006] (Aerotel) to determine whether the exclusion to patentability applied. This required: (1) construing the claim; (2) identifying the actual contribution made by the invention; (3) asking whether that contribution fell solely within excluded subject matter; and (4) checking whether the contribution was technical in nature. The Aerotel approach had been criticised by the EPO as incompatible with the EPC, but UK courts continued to apply it pending a definitive ruling.

What did the Supreme Court decide?

Abandonment of the Aerotel approach and adoption of G1/19

The Supreme Court held that the Aerotel approach should no longer be followed: through focusing on the “contribution” made by the invention, it mixed the question of whether subject matter qualifies as an “invention” with the separate requirements of novelty and inventive step.

The Court noted that UK courts should follow the settled jurisprudence of the EPO “unless convinced that they are wrong or beyond the ambit of reasonable difference of opinion”. The Enlarged Board of the EPO's interpretation of Article 52 in Bentley Systems (UK) Ltd/Pedestrian Simulation (Decision G1/19) [2021] (G1/19) could not be said to fall into either category. On the potential disruption this change will cause to patent practice in the UK, the Court said “the fact that a change may be disruptive cannot by itself justify maintaining an idiosyncratic approach which is inconsistent with established jurisprudence of the EPO”.

In place of Aerotel, the Court endorsed the approach set out in G1/19, which comprises three stages:

• The “any hardware” test: a method involving technical means is an invention within the meaning of Article 52(1). If the subject matter of a claim involves the use of any hardware, the exclusion for computer programs does not apply. This sets a deliberately low threshold for qualifying as an “invention”.
• An “intermediate step”: examiners must determine which features of the claim contribute to the invention's technical character. Non-technical features are filtered out and cannot support novelty or inventive step.
• Assessment of novelty and inventive step: only those features which contribute to technical character are considered when assessing novelty and inventive step.

Although the Court explained the intermediate step conceptually, it declined to give detailed guidance on how it should be applied in practice. It emphasised the need for UKIPO and lower courts to consider this issue in future cases.

ANNs are “programs for computers” …

The Court rejected the distinction between “hardware ANNs” and “software ANNs”. An ANN is an abstract computational model implemented in hardware or software. In either case, it represents a set of instructions causing a machine to manipulate data in a particular way. Accordingly, an ANN falls within the “programs for computers” exclusion to patentability.

… but this invention was not a computer program “as such”

Applying the “any hardware” approach, the question whether the claimed invention was a computer program “as such” was straightforward: the claims involved technical means including computer hardware implementing the ANN, a database for storing data files, a communications network and a user device. This hardware involvement was sufficient for the subject matter to qualify as an “invention” under Article 52(1) and the exclusion for programs for computers “as such” therefore did not apply.

The appeal was accordingly allowed and the UKIPO's decision set aside. The matter now returns to the UKIPO for assessment of novelty and inventive step under the new framework.

What does this mean in practice?

This decision represents the most significant shift in UK patentability analysis since Aerotel was decided nearly two decades ago. The Aerotel four-step approach has been firmly rejected and the divergence between UK and EPO approaches to Article 52 has now been largely eliminated.

The “any hardware” test sets a deliberately low threshold for avoiding the computer program exclusion to patentability. Many claims that might previously have been rejected under Aerotel on the basis that their “contribution” was not technical may now pass the initial hurdle. However, patentees should not assume this means an easier path to grant overall. The intermediate step will scrutinise which features can support inventive step, potentially resulting in more rigorous analysis at that stage.

For AI and machine-learning inventions specifically, the decision provides important clarifications. ANNs and other AI systems are definitively treated as computer programs. However, this does not prevent patentability where technical means are involved. The mere fact that an invention involves AI does not exclude it from patent protection. Patentability will depend on whether the claims include technical features and whether those features, assessed through the intermediate step, contribute to a technical solution.

On 30 January 2025 the UKIPO updated its Guidelines for examining patent applications relating to artificial intelligence (AI) following the Court of Appeal judgment, however on 11 February 2026 it withdrew these guidelines following the Supreme Court decision. We anticipate the IPO will issue revised guidelines in due course.

Patent applicants should consider the following in light of this judgment:

• Review pending applications: Applicants with pending UK applications involving software, AI or data processing should assess whether the new framework affects their prosecution strategy or provides opportunities to overcome previous objections.
• Revisit rejected applications: Where applications have been refused on the basis of Aerotel analysis, applicants should consider whether the new G1/19-aligned approach provides grounds for challenging those decisions.
• Align UK and EPO strategies: With the divergence between UK and EPO approaches now largely removed, applicants should consider harmonising their claim drafting and prosecution strategies across both jurisdictions.
• Focus on technical character: Specifications should clearly articulate the technical purpose and technical effect of AI models and claims should identify features that contribute to the technical character of the invention.