The UK Supreme Court (‘UKSC’) handed down a pivotal judgment on 11 February 2026 in Emotional Perception AI Ltd v Comptroller-General of Patents, marking an important shift in the way computer-implemented inventions, and in particular artificial neural networks (‘ANNs’), are to be assessed for eligibility for patent protection. The UKSC decision aligns UK patent practice with that of the European Patent Office (‘EPO’).

The question at the centre of the appeal was whether Emotional Perception’s ANN was eligible for patent protection, or whether it was excluded from patentability as a “program for a computer […] as such”. That exclusion is governed by Article 52(2)(c) and (3) of the European Patent Convention (‘EPC’), and the equivalent provision, section 1(2)(c), of the UK Patents Act 1977 (‘PA 1977’).

The ANN in question was designed to recommend media such as songs, based on their ‘emotional similarity’, determined by reference to the media file’s physical properties rather than relying on categories identified by users. The UK Intellectual Property Office (‘UKIPO’) rejected the application on the basis that the ANN fell within the exclusion from patent eligibility for a “program for a computer […] as such”. The UKIPO applied the Aerotel test from the 2006 Court of Appeal decision.

In Aerotel, the English Court of Appeal set out a four-step structured approach to be followed in applying EPC Article 52(2)(c). On this approach, the central question was whether the invention as defined made a novel technical contribution to the known art, with the rider that subject matter which falls within an exclusion does not count for this purpose.

The EPO has since then disagreed with the English courts and rejected the approach as inconsistent with the EPC. The EPO instead endorsed what has been called the ‘any hardware’ approach - this is the new law in the UK following the UKSC judgment.

The EPO approach focuses on the question of whether the claim amounts to an ‘invention’ first, ahead of and separately from the other three conditions of novelty, inventive step, and industrial application.

Emotional Perception appealed the refusal to the High Court, which allowed the appeal, finding that the ANN did not fall within the exclusion. The Comptroller-General of Patents appealed the decision, and the Court of Appeal agreed that the ANN was caught by the exclusion and reinstated the UKIPO refusal.

The UKSC held that although Emotional Perception’s claimed method involves an ANN which is a program for a computer, it also involves technical means because it can only be implemented on some form of computer hardware. That is sufficient to show that the subject matter of the claims has technical character and is not a computer program “as such”. Accordingly, the UKSC allowed the appeal, remitting the matter to the UKIPO for reconsideration following the new approach set out the judgment.

Departure from the Aerotel test The UKSC prioritised harmonisation with the EPO, which was a core objective of the Patents Act 1977.

The UKSC unanimously held that the Aerotel line of cases, which for two decades provided the framework for identifying excluded subject matter in UK patent practice, should no longer be followed. The Enlarged Board of Appeal of the EPO had expressly found the Aerotel approach to be incompatible with the EPC, particularly in its interpretation of what constitutes an ‘invention’. The UKSC explained the rationale for alignment with the EPO approach:

“These courts are not strictly bound by decisions of the Boards of Appeal of the EPO, even of the Enlarged Board, but they should respect and follow the Enlarged Board’s decisions and any uniform jurisprudence of the Boards of Appeal unless convinced that they are wrong or beyond the ambit of reasonable difference of opinion. This is essentially for good policy reasons. The national courts of all the contracting states should seek a uniform interpretation of the EPC, and of domestic legislation passed to implement it.”

The UKSC therefore held that the approach in the Enlarged Board of Appeal’s decision in G1/19 should be followed in preference to the Aerotel approach.

The ‘any hardware’ principle

The UKSC held Emotional Perception’s ANN to be a computer program, but one that also involves technical means, because its implementation requires some form of computer hardware.

“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’.”

The UKSC confirmed that whilst the approach to excluded subject matter has changed to follow G1/19, the established UK approach for inventive step (the Pozzoli test) remains unaffected.

Introduction of intermediate step The UKSC explained that the adoption of the G1/19 approach introduces an ‘intermediate step’ when assessing the eligibility of a computer-implemented invention such as an ANN, resulting in a three-step process of consideration:

  • Determining whether the invention is eligible for protection or subject to an exclusion, e.g. a program for a computer “as such”;
  • Filtering out any technical and non-technical features that do not contribute to the technical character of the invention as a whole;
  • Assessing novelty and inventive step.

Consequences for computer-implemented inventions

The UKSC judgment represents a considerable shift from the previous UK approach to patentability for computer-implemented inventions. A greater number of software-focused patent applications are likely to survive examination in the UKIPO than under the previous approach, though it remains to be seen how many will ultimately progress to grant. The harmonisation of the UK approach with that of the EPO is likely to be viewed positively by innovators, particularly in the field in the AI, and should be welcomed by the Government, which seeks to make the UK a leader in AI investment and development.