The Supreme Court has ruled on the patentability of a computer related invention for the first time in Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks, thereby reshaping the UK’s approach to computer inventions.
Background:
The patent application in question involved an Artificial Neural Network (ANN) designed to recommend media files (such as music tracks) based on the file’s physical categories such as human perception and emotion rather than genre of music. The UKIPO refused the application on the basis that it fell within the “as such” statutory exclusion from patentability under s.1(2)(c) of the Patents Act 1977. In doing so the UKIPO relied on the long‑standing view that ANNs fall within the statutory exclusion which provides that certain items – including computer software – are excluded from patentability only if the application relates to them “as such” (i.e. if it relates to the item in and of itself). After conflicting decisions in the High Court and Court of Appeal, the issue reached the Supreme Court.
For almost 20 years, the UK has been anchored to the four-step test in Aerotel when assessing patent applications to determine whether the “as such” exclusion applies. This involves the following steps:
- Properly construe the claim.
- Identify the actual contribution.
- Ask whether the contribution falls solely within the excluded subject matter.
- Check whether the actual or alleged contribution is technical in nature.
This test has been criticised for confusing as to whether something is an invention and whether it is new and inventive. By focussing on an invention’s “contribution”, Aerotel pulled novelty and inventive step into the exclusion analysis. The Supreme Court has now rejected this approach, bringing the UK into line with the European Patent Office’s approach.
The Supreme Court has endorsed the “any hardware approach” as the first stage in identifying whether there is an invention as if hardware is involved, then the exclusion does not apply. The ANN avoided the exclusion by using a computer, computer readable storage medium or other technical means. The subject matter of the claim had technical character and was not a computer program “as such” (for example, having a database, communications network and a user device). It is important to note that novelty, inventive step and industrial application remain as requirements before the invention can be patentable.
For businesses, this removes a major barrier. Most AI technologies operate on hardware, meaning they will now typically clear the exclusion stage swiftly.
The most important practical development is the introduction of the “intermediate step” in connection with the assessment of novelty or inventiveness, requiring the claim to be broken down into component features to determine which features contribute to the technical character of the invention as a whole. Non-technical features (for example, mathematical methods or conceptual design choices) may be ignored in assessing the novelty and inventiveness of an invention. The Supreme Court sent the case back to the UKIPO to make that assessment (the patent is yet to be granted however). This step is likely to become the main area of discussion in AI‑related applications. It also concluded that ANNs are a “program for a computer” which is an “abstract model” rather than a physical object, which manipulates data in a particular way to produce a desired result.
This judgement is significant in how the law patentability of AI and provides much needed clarity and legal certainty of the new approach that will be followed. While they will still need to demonstrate that their inventions involve an inventive step over the prior art, they will no longer face the significant risk and cost of having their patent applications rejected at the preliminary stage on the basis that ANNs and other AI technologies are excluded from patentability as computer programs “as such”. The alignment with EPO practice means that UK patents obtained via the EPO, as well as direct UK filings, will all be assessed on a consistent and harmonised basis.
Separately, we also flag that regulators have become increasingly focused on the wider risks posed by AI systems, including those that generate synthetic content. On 23 February 2026, the ICO joined 60 international data protection authorities in issuing a joint statement on the privacy risks of AI‑generated imagery, highlighting concerns about realistic images and videos of identifiable people being created without consent. The statement stresses the heightened risks to children, the need for robust safeguards, and the importance of transparency, rapid takedown mechanisms and responsible deployment of AI tools.
If you would like advice on protecting your invention or have any questions relating to AI and Intellectual Property, please do not hesitate to contact our Commercial & Technology team at [email protected].
