On 11 February 2026, the Supreme Court delivered its judgment in Emotional Perception AI Ltd v Comptroller General of Patents, a decisive judgement on how the computer program exclusion must be assessed and the patentability of computer-implemented inventions (CIIs) and artificial intelligence (AI).
Rules for patenting computer programs in the UK
Computer programs, as such, are excluded from patentability in the UK on the basis that computer programs are not technical in nature. Rather, they are a set of instructions to allow a computer to perform a specific task. This has meant that many software-based innovations were deemed unpatentable at the UK’s Intellectual Property Office (UKIPO), unless the innovation provided a technical contribution. Technical contributions would largely be categorised into two groups:
- Inside the computer – enabling computers to work better or faster
- Outside of the computer – application of the invention produces a technical effect in the real world e.g., software enabling medical imaging equipment to better identify abnormalities, leading to faster diagnosis and treatment of disease.
The ruling addresses two fundamental questions. First, whether artificial neural networks (ANNs) fall within the “program for a computer” exclusion under section 1(2) of the Patents Act 1977 (reflecting Article 52 European Patent Convention (EPC)). Second, and more broadly, whether the long-established four-step test from Aerotel Ltd v Telco Holdings Ltd remains appropriate in light of developments at the European Patent Office (EPO), particularly the Enlarged Board of Appeal’s decision in G 1/19.
The Court’s decision to both questions marks a significant shift in the UK’s approach to the computer programs exclusion.
For background information surrounding this case, please see our earlier blog here.
The end of Aerotel
For nearly twenty years, UK courts and the UKIPO have applied the four-step approach laid down in Aerotel to determine whether subject matter is excluded from patentability. Central to that approach was the identification of the invention’s “actual contribution” and an assessment of whether that contribution fell solely within excluded subject matter.
The Supreme Court has now concluded that this framework should no longer be followed.
The Court held that the Aerotel approach improperly conflated distinct requirements under the European Patent Convention (EPC). Instead, the Court decided that the UK would adopt a similar approach to the EPO, including the ‘any hardware’ step.
Alignment with the EPO’s approach
In place of Aerotel, the Court endorsed the interpretative framework reflected in G 1/19 and earlier cases such as Comvik and Duns.
The key elements of this approach are:
- Eligibility (Is there an invention?)
A claim involving technical means, such as a computer, will generally qualify as an “invention” under Article 52(1) EPC. The so-called “any hardware” threshold is a relatively low bar. - Identify the technical features
Where a claim contains both technical and non-technical features, only those features which contribute to the technical character of the invention are assessed for novelty and inventive step. - Inventive Step
In assessing inventive step, non-technical features that do not interact with technical features to solve a technical problem are disregarded.
This now requires the UKIPO to adopt the ‘any hardware’ test in assessing whether the claimed invention falls within the computer program exclusion. Practically, this means that the presence of any hardware (such as a computer) is enough to establish technical character.
Are ANNs computer programs?
Emotional Perception’s primary submission was that ANNs are not computer programs, as such. It argued that an ANN, particularly when implemented in dedicated hardware, is not a conventional computer and does not operate by executing a sequence of logical instructions in the traditional sense.
The Supreme Court rejected this characterisation.
The Court refused to limit the meaning of “computer” to conventional digital machines, instead this extends to developments such as analogue or quantum computing. Similarly, the concept of a “program” cannot be limited to traditional lines of executable code but rather a set of instructions that a computer may follow.
An ANN, whether implemented in software or hardware, performs computations by applying weighted mathematical operations to inputs to generate outputs. The Court held that such systems fall within the scope of “programs for computers” for the purposes of Article 52(2)(c).
This aspect of the judgment provides clear guidance: artificial intelligence systems are not exempt from the computer program exclusion merely by virtue of their complexity or training methodology.
Does this impact the patentability of AI and Software in the UK?
Practically, yes, we expect this judgement to be favourable to the patentability of AI and software. In our experience, the computer program exclusion proved to be a significant hurdle to AI/software-based inventions. The shift to adopt the ‘any hardware’ step, coupled with the burden of examination shifting to the inventive step requirement, means that software/AI innovations have a greater chance of securing a patent in the UK.
