UK Supreme Court Aligns UK Law with EPO on AI Patentability

The UK Supreme Court has delivered a landmark decision in Emotional Perception AI Ltd v Comptroller General of Patents [2026] UKSC 3, clarifying the patentability of artificial intelligence and computer-implemented inventions in the United Kingdom.

The judgment brings UK law into closer alignment with European Patent Office (EPO) jurisprudence and formally ends the long-standing Aerotel framework which has governed the assessment of excluded subject matter for nearly two decades.

Background

The case concerned a patent application directed to a recommendation system using an artificial neural network (ANN). The UK Intellectual Property Office refused the application on the basis that it related to a “program for a computer … as such”, which is excluded from patentability under Article 52 EPC and section 1(2)(c) of the Patents Act 1977.

The High Court allowed the applicant’s appeal, but the Court of Appeal reinstated the refusal. The Supreme Court has now allowed the further appeal.

Key findings

1. Aerotel overruled

The Court held that the four-step Aerotel test is inconsistent with the proper interpretation of Article 52 EPC. In particular, it wrongly conflated the threshold question of whether there is an “invention” with the separate requirements of novelty and inventive step. UK courts must now follow the so-called “any hardware” approach endorsed by the Enlarged Board of Appeal of the EPO in G1/19.

2. ANNs are computer programs

The Court confirmed that an ANN is an abstract entity or model which constitutes, in essence, a set of instructions to manipulate data in a particular way. It therefore falls within the expression “program for a computer”.

The fact that an ANN may be implemented in specialised hardware, or that its parameters are learned through training, does not alter this analysis.

3. But not excluded “as such”

Applying the EPO’s “any hardware” approach, the Court held that the claimed system was not a computer program “as such” because it involved technical means. The application therefore satisfied the threshold requirement of being an “invention”.

4. Introduction of an intermediate filtering step

After the low “invention” threshold is met, a new intermediate step must be applied, before assessing novelty and inventive step. Only features that contribute to the “technical character” of the invention are to be considered when assessing these requirements.

Non-technical features which do not interact with technical features in a way that contributes to the “technical character” of the invention are disregarded.

The Supreme Court declined to apply this step itself and remitted the matter to the UKIPO for determination of novelty and inventive step. It seems that the Court has left it to the UKIPO, in the first instance, to decide how to identify the technical and non-technical features of the claims. The UKIPO would be free to follow the EPO approach of identifying features having technical character (by reference their contribution to the solution of a technical problem). But it is not bound to follow that approach.

Practical implications

The decision confirms that AI-based inventions are not automatically excluded from patentability in the UK. However, it also makes clear that artificial neural networks are treated as computer programs, and the substantive assessment will focus on whether the claimed features contribute to the technical character of the invention.

For applicants, careful drafting will be essential to demonstrate how specific features contribute to the technical character of the invention as a whole.

We are monitoring developments in UKIPO practice following this decision and will provide further updates as the remitted proceedings progress.