On 11 February 2026, in an important decision, the UK Supreme Court unanimously allowed the appeal in Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3. The decision provides crucial guidance to UK patent law for Artificial Intelligence (AI) and software-implemented inventions.
What is the decision?
The Court addressed three primary matters regarding the patentability of an Artificial Neural Network (ANN) used for media recommendations:
- Abandonment of the “Aerotel” Test: The Court rejected the long-standing Aerotel four-step test. The court held that Aerotel misinterpreted the European Patent Convention (EPC) by conflating the threshold question of whether something is an “invention” with the requirements for novelty and inventive step.
- Artificial Neural Networks (ANNs) are “Computer Programs”: Overturning the High Court’s decision, the Supreme Court ruled that an ANN constitutes a “program for a computer” whether implemented in hardware or software. This is because the ANN consists of a set of instructions (weights and biases) that cause a machine to process data.
- Not Excluded “As Such”: Although an ANN is a computer program, an ANN is not excluded from patentability as a “program for a computer … as such”. This is because the ANN involves technical means (hardware such as computers, databases, and networks).
How will the update affect UK practice?
The UK Supreme Court decision aligns the UK closer with the practice of the European Patent Office (EPO), for example:
- “Any Hardware” Approach: The decision adopted the EPO’s “any hardware” principle, meaning that if an invention refers to the use of any physical hardware, then the invention overcomes the “invention” hurdle.
- The “Intermediate Step”: The decision introduced a new mandatory filter between the “invention” hurdle and the assessment of novelty/inventive step. This step identifies which features contribute to the technical character of the invention; non-technical features are ignored when assessing whether the invention is truly “inventive”.
- Inventive Step Methodology: While aligning on the threshold for what counts as an invention, the Court noted that the established UK four-part Pozzoli test for assessing inventive step remains valid for now – though such may require future modification.
The Supreme Court did not grant the patent itself. Instead, it remitted the case back to the UK Intellectual Property Office (UK IPO). The UKIPO must now apply the new “intermediate step” and determine whether the invention is novel and inventive under the revised guidance.
What are our thoughts?
In July 2024 we commented on the earlier decision of the English Appeal Court in this case, and mentioned that we awaited the possible decision from the Supreme Court.
We now welcome the decision of the Supreme Court which provides final clarification on the patentability of AI inventions and further aligns UK and EPO practice.
It remains the case with Computer Implemented Inventions (CII’s) that forward planning, careful drafting and correct claiming of the invention from the beginning is key to smoothing the grant process. The adage that ‘prevention is better than cure’ still applies.
Follow the new guidance from the Supreme Court and that of the UKIPO regarding showing ‘technical contribution’ when preparing CII/AI applications, and later ‘excluded matter’ objections should hopefully be avoided. Following the guidance of the EPO, as well as that given by G1/19 of the Enlarged Board of Appeal, would also be wise.
We have extensive experience in preparing and handling computer inventions before the UKIPO and the EPO. If you need any advice or assistance, then please contact us at: mail@morelandip.com or our website at www.MorelandIP.com.
