The Supreme Court’s judgment in Emotional Perception v Comptroller [2026] UKSC 3 has significantly limited the operation of the “program for a computer…as such” exception to patentability to a threshold test, scrapping the Aerotel approach and replacing it with the “any hardware” approach of the European Patent Office (EPO). It makes patentability more attainable for software and computing inventions.

However, the Supreme Court’s reasoning has far broader implications for patent law. It imports a structured approach to the interpretation and application of the European Patent Convention’s article 52, drawn from G1/19 Bentley Systems and T 154/04 Duns, which is new to English law. Step (1) requires the invention as a whole to be considered technical in character, functioning as an eligibility test in which the exclusions of art. 52(2)(c) are not interpreted broadly. Next is an “Intermediate step” in which claim features not contributing to a technical solution in view of the closest prior art must be excluded from further consideration. Then Step (2) is when novelty, inventive step and industrial application are assessed by reference to the technical features i.e. features which contribute to the technical character of the claimed invention.

The well-established principles in the UK governing the assessment of Step 2 issues do not require the identification of technical features or that patentability only be available in respect of technical features as described in EPO case law. The courts in the UK will therefore need to explain how the principles described in the leading authorities - such as Actavis v ICOS [2019] UKSC 15 and Synthon v SKB [2005] UKHL 59 - should be adapted to give effect to the Supreme Court’s ruling in the Emotional Perception case.

The Supreme Court has, however, reassured the lower courts that it has not created a “Frankenstein monster”(!).

Background to the Emotional Perception case reaching the Supreme Court

Emotional Perception claims to have invented a system or method which uses an artificial neural network (ANN) to replicate the similarities and differences which a human being might subjectively perceive between different files of information (for example music files). It is said to be able to make better recommendations based on objectively measurable physical properties of the files. Emotional Perception sought patent protection in the UK for its invention.

The Patents Act 1977 (PA), section 1(1)-(4), and EPC article 52 (which it implements), both provide that a patent may be granted for an ‘invention’ provided that it is new, involves an inventive step and is susceptible of industrial application. Both expressly exclude from patentability a number of listed things (for example 'a program for a computer…as such').

The Hearing Officer, the High Court and the Court of Appeal reached flip-flopping conclusions as to whether Emotional Perception’s application was excluded from patentability under the “program for a computer…as such” exclusion. They did so applying the law explained by the Court of Appeal in Aerotel v Telco [2006] EWCA Civ 1371. Emotional Perception, unsuccessful in the Court of Appeal, appealed to the Supreme Court arguing that the Aerotel approach was out of step with the requirements of the EPC.

How to approach patentability issues in light of the Supreme Court’s judgment

The Supreme Court concluded that the Aerotel approach was not compliant with the requirements of EPC art. 52. A new approach was needed.

The Supreme Court focused its reasoning on the text of EPC article 52, which provides:

"Patentable inventions

1. European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

2. The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

    • (a) discoveries, scientific theories and mathematical methods;
    • (b) aesthetic creations;
    • (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
    • (d) presentations of information.

3. Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such."

The Supreme Court explained that the correct approach to the interpretation and application of art. 52 is that explained by the Enlarged Board in G 1/19, which drew upon Board of Appeal reasoning in T 154/04 Duns. In each of those decisions though, aspects of the reasoning addressed or were phrased in the context of the EPO’s preference for the problem and solution approach, rather stating something dictated by the EPC on its true interpretation.

How the courts in the UK should proceed in light of Emotional Perception, G 1/19 and Duns therefore requires some unpacking.

In short, the Supreme Court explained that to be patentable, any invention has to (1) pass the “eligibility test” of art. 52 (i.e. it must not fall under the “non-inventions” mentioned there), and (2) fulfil the other criteria listed in that article (of novelty, inventive step, susceptibility to industrial application). Additionally, an intermediate step requires consideration of what feature(s) may contribute to the assessment of Step (2). Elaborating further:

Step (1): The ‘eligibility’ / ‘invention’ test

The requirement for an ‘invention’ is separate and distinct from the requirements for novelty, inventive step and susceptibility of industrial application, and it must be considered first, ahead of and separately from the other three requirements.

According to EPC art. 52(1), patent protection is reserved for creations in the technical field; only “technical” inventions are patentable. The claimed subject-matter must therefore have a “technical character” or, more precisely, “involve technical teaching” i.e. an instruction addressed to a skilled person as to how to solve a particular technical problem using particular technical means. Art. 52(2) contains a non-exhaustive list of “non-inventions” - subject matter which is not to be regarded as an invention within the meaning of art. 52(1) - which have in common reference to activities which do not aim at any direct technical result but are rather of an abstract and intellectual character. Art. 52(3) limits the listed non-inventions to such subject-matter or activities “as such”, which bars a broad interpretation of the listed non-inventions.

No comprehensive definition of ‘invention’ for the purposes of EPC art. 52 is provided in the legislation or the case law. A method involving technical means is an ‘invention’ for this purpose and having technical character is an implicit requirement of such an ‘invention’. Art. 52(2) does not exclude from patentability any subject matter or activity having technical character, even if related to the items in the provision, because those items are only excluded “as such”.

The assessment of ‘invention’ for the purposes of art. 52(1) is made without reference to the prior art and it should not be confused with the layman’s ordinary understanding of an invention as something novel and making an inventive contribution. It may include a mix of technical and ‘non-technical’ features appearing in the claim. If the subject matter of the claim involves the use of any hardware, then article 52(2) is at least prima facie inapplicable.

A claim directed to a computer-implemented invention therefore avoids exclusion under art. 52 EPC merely by referring to the use of a computer, a computer readable storage medium or other technical means. A technical feature may be described at a high level of abstraction or functionality, and it may be implicitly evidence that a certain claimed method is computer implemented and hence technical. On the other hand, the mere possibility of making use of an unspecified computer for performing a claimed method is not enough.

The requirement that the claim, considered as a whole, discloses an ‘invention’ must be satisfied before the other requirements for patentability become relevant.

The intermediate step

The Supreme Court made clear its view that the intermediate step as described in G1/19 forms a part of the approach to the interpretation and application of EPC art.52 in the UK. Although the EPC says nothing express about the intermediate step, the Enlarged Board in G1/19 held that it is implied by art. 52. Hence it is a necessary part of the process of applying articles 52 to 56 (at least) of the EPC because the invention threshold provided by the Board’s “any hardware” interpretation of art. 52 is too low to enable the invention reliably to be tested for novelty and inventive step.

At Step (2), only features “contributing to a technical solution or a technical problem in view of the closest prior art” can contribute to novelty and inventive step. The intermediate step therefore determines which features in a ‘mixed’ invention (comprising technical and non-technical features) contribute to its technical character; and so towards to its novelty and inventive step.

Features that can be considered technical per se may nevertheless not contribute to inventive step if they do not contribute to the solution of a technical problem.

Non-technical features, to the extent they do not interact with the technical subject matter of the claim for solving a technical problem (i.e. non-technical features as such; features which do not contribute to the technical character of the invention), do not provide a technical contribution to the prior art and are thus ignored in Step (2). The purpose of the intermediate step is to exclude such non-technical features.

The requirement is to carry out this analysis by reference to the technical character of the invention, viewed as a whole. The Supreme Court continued ([106]-[109]):

“Although the discussion of the intermediate step is couched in terms of the technical solution of a technical problem, …the EPC does not mandate the EPO's problem and solution approach as the sole means of resolving any question about patentability. It is just the way the EPO does so as a matter of its practice. …it is open to the UKIPO and to the UK courts to adopt any appropriate method of identifying the technical character of the invention, viewed as a whole, as the necessary first part of carrying out the intermediate step. An example of an appropriate method might in a particular case be to identity the alleged "inventive concept" of the claim, as explained in Pozzoli.

"…the intermediate step does not involve assessing each feature of the invention by asking whether the feature is itself, viewed separately, technical or non-technical. The sole criterion is whether the feature contributes to the technical character of the invention as a whole. Thus, technical features may be filtered out because they make no such contribution and non-technical features may be left in because they do make such a contribution.

"…it is not relevant, at the stage of the intermediate step, whether the technical character of the invention appears to be novel or inventive.”

Step (2): Assessment of the distinct requirements of novelty, inventive step, susceptibility to industrial application

The Supreme Court’s endorsement of the Enlarged Board’s approach explained in G 1/19 made clear that novelty and inventive step can be based only on technical features.

For inventive step, features distinguishing an invention from the prior art must contribute to solving a technical problem across the entire or substantially the entire claimed subject-matter.

In Duns, the Technical Board of Appeal explained that technical features upon which novelty and inventive step are assessed “have to be clearly defined in the claim”. While consistent with the problem and solution approach to the assessment of inventive step also explained in Duns, it remains to be seen to what extent this will be drawn into the English case law in the future.

The Supreme Court made clear its view that adopting the EPO’s interpretation and application of article 52 explained in G 1/19 “does not necessitate changing in any significant way the received approach to assessing whether there is an inventive step” in the law in the UK. The problem and solution method “is a matter of practice rather than something dictated by the EPC on its true interpretation” and not mandated by the EPO.

The Supreme Court’s view was that Actavis v ICOS [2019] UKSC 15 “continues to hold good”. In that case, the Supreme Court endorsed the conventional English approach to the assessment of inventive step, rejecting an argument that it was in conflict with the EPO’s problem and solution approach. The approach to inventive step laid out in Pozzoli v BDMO [2007] EWCA Civ 588 “remains a legitimate approach”.

Departure from Aerotel

The Supreme Court was clear that in a number of respects, the approach described above stands in sharp contrast to the Aerotel approach. At best, the Aerotel approach jumbled up the test of an invention with the other requirements for patentability and reversed the logical order of analysis. It was “emphatically rejected” by the Enlarged Board in G 1/19 as a means of applying article 52(2) and (3), for its failure to give effect to the “any hardware” approach accepted in the EPO and for being based on a misunderstanding of the term “invention” in article 52(1). There was “real force” in the Enlarged Board’s criticism. The Supreme Court’s conclusion was, therefore, that it should depart from the Aerotel approach.

Applying the UKSC’s approach to Emotional Perception’s application

The Supreme Court concluded that an ANN is a ‘program for a computer’, but not a ‘program for a computer…as such’. Its reasoning differed from the lower courts.

The Supreme Court explained that an ANN can be implemented in hardware (whether the weights and biases are adjustable or fixed) - indeed it can be implemented using various types of physical machine - but an ANN is not itself hardware. For the purposes of art. 52, there is no conceptual justification for privileging one form of implementation over another because what matters is “the arrangement of artificial neurons, each characterised by its links to other neurons in the network, weights, bias and activation function”. Consequently, an ANN (even a hardware ANN) is not itself a ‘computer’ for the purposes of art. 52.

However, the machine on which an ANN is implemented is apt to be described as a computer. This would be uncontroversial where a conventional computer is used, but what characterises a physical machine is its functionality, not the specific technology used to achieve that functionality. The concepts used in the EPC must be presumed as intended to accommodate technological change. There is no warrant for excluding future devices, such as quantum computers, from the scope of art. 52(2)(c) or for confining the term ‘computer’ to a conventional computer deploying a CPU.

To allow for the fact that there are computers which are not conventional digital computers, the meaning of ‘program’ must be correspondingly broadened: to include a set of instructions capable of being followed by a computer (of any kind) to produce desired manipulations of data.

However an ANN is implemented, input data presented is processed in a particular way by computations performed on the data as it is propagated through the network, until it produces an output. The machine on which the ANN is implemented is functioning as a computer irrespective of whether the machine is also capable of performing other operations. So the ANN constitutes, in essence, a set of instructions to manipulate data in a particular way so as to produce a desired result. The instructions include the weights and biases of the ANN; but the output of the ANN also depends on the topology of the network and the activation functions employed. It is the combined features that instruct the machine to process data in a particular way.

Therefore, viewed as a whole, an ANN is a program for a computer, whether fixed in permanent form or in a form that can still be changed/trained. There is no reason for distinguishing in law between computer-created and human-created instructions.

The Supreme Court expressly rejected the Court of Appeal’s definition of a ‘computer’ as “a machine which processes information”: the definition is too broad because it covers devices which are not generally considered to be computers, such as basic ovens and smoke detectors.

Applying the “any hardware approach” endorsed by the Enlarged Board in G1/19, the Supreme Court explained that Emotional Perception’s claims were NOT to a ‘program for a computer…as such’, and so were not excluded by art. 52(2)(c) ([98]):

“Although the claimed method involves an ANN which is a program for a computer, it also involves technical means because the ANN can only be implemented on some form of computer hardware. In addition, the claims refer to a database for storing data files, a communications network and a user device - all of which require or constitute hardware. That is sufficient to show that the subject matter of the claims has technical character and is not to a computer program "as such". It follows that the UKIPO was wrong to decide, for the reason it did, that the application for a patent should be refused.”

Intermediate step and Step (2)

As Emotional Perception’s patent application had survived the Step (1) assessment, it was necessary to progress to the intermediate step and then to Step (2). However, the arguments in the Supreme Court had not focused upon how the intermediate step is to be applied to computer implemented inventions, or on the extent to which the English judgments which have previously considered whether a computer-implemented invention has a relevant technical effect continue to provide assistance. So the case will revert to the Hearing Officer to hear and determine such arguments, in view of the Supreme Court’s comments on the intermediate step explained above.

Fuller impact of UKSC’s Emotional Perception judgment remains to be seen

The Supreme Court made clear the importance of the intermediate step i.e. of identifying the features contributing to “the technical character of the invention”, also described as “a technical solution or a technical problem in view of the closest prior art”; and that it is only those features which contribute to the technical character of the invention which may be considered in the assessment of novelty and inventive step at Step (2).

The concept of technical (and non-technical) features aligns with the EPO’s problem and solution approach to the assessment of obviousness. This was explained by the Supreme Court as involving “identifying, by reference to the closest prior art in the technical field of the invention, a technical problem which the invention claims to solve, and then assessing whether the technical feature(s) which form the claimed solution could be derived by the skilled person in that field in an obvious manner from the state of the art”.

In the UK, the Pozzoli approach to the assessment of obviousness instead considers the “differences” existing between the state of the art and the invention as claimed, and whether they would have been obvious to the person skilled in the art. There is no reference to “technical feature”, “technical character” or “technical solution” - see for example Pozzoli v BDMO [2007] EWCA Civ 588 or Actavis v ICOS [2019] UKSC 15.

The key authorities on the principles governing the assessment of novelty in the UK similarly do not refer to those concepts - see for example Synthon v SKB [2005] UKHL 59, Modernatx v Pfizer [2025] EWCA Civ 1032, Abbott v Dexcom [2025] EWCA Civ 1687. The focus instead is on whether the claimed invention is disclosed and enabled by the state of the art. The House of Lords in Synthon said that the ‘state of the art’ can include non-technical matter.

In Emotional Perception v Comptroller, the Supreme Court endorsed the EPO’s view that novelty and inventive step can be based only on technical features, while at the same time saying that it does not believe that this necessitates changing in any significant way the received approach to assessing inventive step (implicitly novelty too) in the UK. It rejected the Comptroller’s submission that adopting the approach explained in G 1/19 while continuing to recognise the Pozzoli method for identifying an inventive step would create a “Frankenstein monster”.

However, on their face, the principles governing the assessment of novelty and inventive step will need to be revisited to give effect to both (a) the requirement for the intermediate step to exclude non-technical features from the analysis at Step (2); and (b) the requirement that novelty and inventive step be determined upon the technical character of the claimed invention.

Litigants in cases ongoing before the courts will need to adapt and prepare their arguments accordingly. Further visits to the Supreme Court can reasonably be expected before the principles become settled. On the other hand, the Court of Appeal may be able to adapt the existing principles adequately to prevent further Supreme Court involvement in the immediate future (as occurred, for example, following the Supreme Court’s intervention on the subject of sufficiency in Regeneron v Kymab [2020] UKSC 27). Watch this space.