The UK Supreme Court has replaced the long‑standing Aerotel framework with an approach more aligned to European Patent Office jurisprudence, significantly reshaping the UK’s treatment of software and AI‑related patentability. In this article we’ll be looking at:

The case’s key facts
The judgment by the Supreme Court
What this judgment means for the future of software patents

The case’s key facts

Overview

The UK Supreme Court has handed down a landmark judgment in the case of Emotional Perception AI Ltd v Comptroller General [2026] UKSC 3, significantly reshaping the UK approach to the patentability of software and AI related inventions.

This decision brings the current approach into much closer alignment with the European Patent Office (EPO) and moves away from the long‑established Aerotel framework, which had previously restricted many claims relating to computer programs.

This decision is particularly important if you’re developing artificial intelligence systems, algorithms, and other software‑based technologies. It could make the UK a significantly more attractive jurisdiction for developing technologies of this nature.

Key points from the judgment

1. Artificial Neural Networks (ANNs) are “computer programs”, but not necessarily excluded

The Court confirmed that an ANN constitutes a “program for a computer” for the purposes of section 1(2)(c) of the Patents Act 1977. As such, claims involving an ANN engage the statutory exclusion for computer programs “as such”. However, crucially, this does not mean such inventions are automatically unpatentable.

2. The Aerotel test is no longer the governing framework

The Court held that the UK should no longer apply the Aerotel four‑step test when assessing excluded subject matter. Instead, UKIPO and UK courts must apply an approach aligned with established EPO jurisprudence—particularly the “any hardware” principle and the COMVIK approach (G 1/19). This means the threshold question of whether subject matter is excluded will now be assessed in a more permissive manner.

3. Alignment with EPO approach

Under the EPO framework:

“If a claimed invention involves any technical means (e.g., hardware), it cannot be excluded “as a computer program as such”. “

The question then becomes whether the invention has the required technical character, to be assessed when determining novelty and inventive step. The Supreme Court endorsed this structure and clarified that EPO case law should guide UK practice going forward.

4. Practical effect: A lower bar for AI and software patent eligibility

The outcome of this shift is that many computer‑implemented inventions that would previously have been refused at the threshold stage may now be considered patent‑eligible. ANNs and other AI systems that run on hardware should now not be dismissed as excluded subject matter simply because they represent “software”.

As a result of this decision the UKIPO is expected to follow a more technology‑friendly approach consistent with the EPO’s examination standards. If you’re working in AI, data science, or software development, you’ll benefit from a materially more favourable environment for seeking UK patent protection.

However, it remains to be seen how the UKIPO will apply this new guidance will be applied in practice as the matter has now been remitted back to them for reconsideration.

Implications for your business

This decision significantly increases your prospects of successfully obtaining UK patents for:

AI systems and models (including ANN‑based technologies)
Algorithm‑driven recommendation engines
Software‑implemented decision‑making processes
Hybrid software–hardware systems
Computer‑implemented inventions that previously risked exclusion under Aerotel

You should still ensure that your claims clearly highlight the technical character of the invention and the specific hardware or technical means involved. However, under the new framework, you face a reduced risk of early rejection on subject‑matter grounds.

The Supreme Court’s ruling is a decisive and positive shift for innovators in the AI and software sectors. By aligning UK law with EPO practice, the Court has broadened the pathway for you to patent a wide range of computer‑implemented inventions.

Trade marks and invalidation: How we can support you

Our dedicated intellectual property team is on hand to guide you through the implications of this judgment or to support you with any broader IP challenges your business may be facing. Please contact Matthew Lingard, Director in the Intellectual Property Team.

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