The UK Supreme Court’s decision on the patentability of computer-implemented AI inventions

The rapid development of Artificial Intelligence (AI) continues to raise important questions about how existing intellectual property laws apply to emerging technologies. Patent protection is a key strategic tool for organisations developing AI-driven systems, yet the UK’s legislative framework dates back to 1977. As a result, clarity on how the statutory exclusions from patentability apply to AI-related inventions has been much needed.

On 11 February 2026, the UK Supreme Court handed down its judgment in Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3. This is the most significant judgment in relation to the patentability of AI in the UK so far, and provides important guidance on how the UKIPO and courts will approach computer-implemented inventions going forward.

Background

The case concerns Emotional Perception AI Ltd’s attempt to patent a system for recommending media files, such as music, to end users. Unlike traditional recommendation systems that rely on genre classifications or user-curated playlists, the invention uses an artificial neural network (ANN) to analyse the physical properties of audio files and identify others that evoke similar emotional responses.

The UKIPO initially refused the application on the basis that the invention fell within the exclusion in section 1(2)(c) of the Patents Act 1977 as a “program for a computer…as such.” (We explored the UKIPO’s decision in detail here.)

Procedural history

High Court

The High Court overturned the UKIPO’s decision, holding that:

an ANN was not excluded from patentability as a program for a computer, and
even if it were, the invention produced a technical effect (the transfer of a file to an end user) sufficient to avoid the exclusion.

Court of Appeal

As we discussed in further detail here, the Court of Appeal reversed that decision, finding that:

an ANN does constitute a computer program, whether implemented in hardware or software, and
the invention did not provide a technical contribution beyond the excluded subject matter.

This reinstated the UKIPO’s refusal and prompted a further appeal to the Supreme Court.

The Supreme Court’s decision

The Supreme Court fundamentally reset the legal test for determining whether such inventions are excluded from patentability. In coming to its decision, three key issues were considered.

1. Should the Aerotel test still be applied?

For nearly twenty years, UKIPO examiners and courts have applied the four-step Aerotel test to assess whether a computer-implemented invention provides a technical contribution. This four-step test required an examiner to:

properly construe the claim;
identify the actual contribution;
ask whether it falls solely within the excluded subject matter; and
check whether the actual or alleged contribution is actually technical in nature.

The Supreme Court determined that this approach should no longer be followed. Instead, the Court adopted the “any hardware” approach taken by the European Patent Office (EPO), focusing on whether the claimed invention has technical character and whether individual features contribute to that technical character.

In Duns Licensing Associates [2004], the EPO affirmed the “any hardware” approach, under which a claim will not be excluded from the initial “invention stage” under Article 52(2) of the European Patent Convention (EPC) if it involves the use of any physical hardware. The Supreme Court determined that the presence of computer hardware, which is necessarily required to implement an ANN, means that the invention is not a computer program “as such”. The claims also referred to a database, communication network and user device, all of which constitute technical means.

This represents a significant lowering of the threshold for satisfying the statutory requirement of an invention, justified by the addition of the words “as such” to each of the excluded items by Article 52(3).

2. Is an ANN a “program for a computer”?

The second issue considered by the Supreme Court was whether an ANN is a “program for a computer” under Article 52(2)(c) of the EPC. The Court criticised the Court of Appeal’s definition of a computer as a “machine which processes information”, noting that this broad interpretation would have the effect of capturing many devices which are not generally considered to be computers, such as a basic oven or smoke detector.

The Supreme Court defined a “program for a computer” as “a set of instructions capable of being followed by a computer (of any kind) – which may or may not have a CPU – to produce desired manipulations of data.” These manipulations of data are “predictable”, meaning that they are determined by instructions the computer is programmed to follow. In the Court’s view, an ANN is consistent with the definition of a computer program in the sense that it is a set of instructions which manipulates data to produce a desired result.

3. Is the entire subject matter of the claims excluded?

The Supreme Court then had to consider whether the entire subject matter of the claims fall within the scope of the exclusion of “programs for computers… as such”, or whether it includes technical features so as to bring it within the definition of an “invention” under Article 52(1) of the EPC.

After applying the “any hardware” test, the Court found that the invention involves technical means given that the ANN can only be implemented on some form of computer hardware. It said that this is sufficient to provide the required technical character. Overall, the Court found that the UKIPO was wrong to refuse the application for a patent.

Introduction of an “intermediate step”

The Supreme Court introduced a new analytical stage to take place after the “any hardware” threshold and before assessing novelty and inventive step:

features that do not contribute to the technical character of the invention are filtered out; and
features that do contribute remain in the assessment, even if they are not themselves technical when viewed in isolation.

This approach differs markedly from Aerotel’s holistic assessment of the invention’s “actual contribution”.

Given that this approach has not been argued before the UKIPO, the case has been remitted for reconsideration.

Comment

The Supreme Court’s judgment provides long-awaited clarity on how the UKIPO, and courts, will assess the patentability of AI-related inventions. The adoption of the “any hardware” approach means that the hurdle for satisfying the statutory definition of an “invention” is now considerably lower.

This change may make it easier to secure patent protection for AI-related technologies in the UK. ANN-implemented inventions are now treated in the same way as other computer-implemented inventions and are no longer singled out for scrutiny.

If you are interested in securing your intellectual property rights, please do not hesitate to contact our Intellectual Property team or our Intellectual Property Disputes team for advice.

This article was co-authored by Trainee Eva Curran.

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