A New Era for UK Software Patents?

The UK Supreme Court's decision in Emotional Perception AI Ltd v Comptroller General of Patents was one of the most significant developments in UK patent law in recent decades. By overturning the long-standing Aerotel framework and bringing UK law into much closer alignment with European Patent Office (EPO) jurisprudence, the Court fundamentally changed the way computer-implemented inventions (CIIs) are assessed for patentability in the UK.  

 

The UK Intellectual Property Office (UKIPO) has now issued updated examination guidance explaining how examiners should apply the decision in practice. The guidance confirms a significant shift in UK practice for CIIs. However, while the new framework is now clear, questions remain about how it will be applied in practice, particularly when assessing inventive step. 

 

The case that changed UK software patent practice 

The patent application at the centre of the dispute concerned a recommendation system based on an artificial neural network (ANN). The invention used machine learning techniques to identify similarities between media files by analysing their measurable properties and correlating those properties with semantic descriptions generated from human assessment. The aim was to improve the quality of recommendations for music, video, text and other content.  

 

The UKIPO originally refused the application on the basis that it related to a computer program and was therefore excluded from patentability. The applicant successfully appealed to the High Court, but the Court of Appeal reinstated the refusal. The matter ultimately reached the Supreme Court.  

 

The Supreme Court's judgment addressed not only the patentability of the invention itself but also the broader question of how the statutory exclusions for CIIs should be interpreted under UK law. In doing so, it reconsidered the validity of the Aerotel approach that has shaped UK practice for almost twenty years.  

 

Supreme Court rejects Aerotel 

The Supreme Court concluded that the Aerotel four-step test should no longer be followed. The Court held that, considering the Enlarged Board of Appeal's decision in G1/19, UK law should adopt the same interpretation of Article 52 EPC as that applied by the EPO. In particular, the Court accepted the principles set out in Duns and endorsed the EPO's "any hardware" approach.  

 

The consequence is that the threshold of whether a claim constitutes an "invention" is now significantly easier to satisfy. If a claim involves technical means, such as a computer or other hardware, it will generally qualify as an invention and will not be excluded merely because it relates to software or other potentially excluded subject matter.  

 

Importantly, the Supreme Court also introduced what it described as an "intermediate step". Before novelty and inventive step are assessed, it is necessary to identify which features of the claim contribute to the technical character of the invention as a whole. Only those features can subsequently support patentability.  

 

At the same time, the Court deliberately declined to provide detailed guidance on how this intermediate step should be applied in practice, leaving that issue to future cases.  

 

How the UKIPO will examine applications going forward 

The UKIPO's new guidance replaces the familiar Aerotel framework with a three-stage approach that reflects the Supreme Court's reasoning in Emotional Perception. In broad terms, the focus shifts away from asking whether a CII is excluded, and towards identifying which aspects of the invention can properly contribute to patentability.  

 

Step 1: Does the claim involve technical means? 

The first hurdle is whether the claim involves any technical means. Following the Supreme Court's adoption of the EPO's "any hardware" approach, this is now a very low threshold. References to a computer, storage medium, communications network, or other hardware will generally be sufficient for a claim to qualify as an invention. As a result, subject matter eligibility objections should now be significantly less common than under the Aerotel regime.

  

One practical consequence is that fewer software-related applications are likely to receive an early exclusion objection without substantive examination. Applicants are therefore more likely to obtain a search report and reasoned assessment of novelty and inventive step, which can be valuable not only for UK prosecution but also for broader patent strategy. For many applicants, early visibility of the prior art can inform decisions on whether and how to pursue priority-claiming international filings. 

 

Step 2: Which features contribute to technical character? 

This second stage is the "intermediate step" introduced by the Supreme Court. Examiners must identify, feature-by-feature, which aspects of the claim contribute to the technical character of the invention as a whole. Features that form part of, or interact with, the technical solution of a technical problem will pass this stage and be carried forward into the substantive assessment of patentability.  

 

Step 3: Novelty and Inventive Step 

The third stage is the substantive assessment of novelty and inventive step. The Supreme Court made clear that these remain separate questions from patent eligibility and should not be conflated with the exclusions analysis, as occurred under the Aerotel approach.  

 

Importantly, however, not every feature of the claim will be relevant at this stage. Only those features identified during the intermediate step as contributing to the technical character of the invention can support novelty or inventive step. Features that do not contribute to technical character are effectively filtered out before the assessment against the prior art begins.  

 

The Supreme Court also confirmed that abandoning Aerotel does not require the UK to abandon the established Pozzoli approach to inventive step. However, neither the Court nor the UKIPO has provided any significant guidance on how the new filtering exercise will fit into a conventional Pozzoli analysis. This is likely to become a key issue in future examination and litigation. 

 

The UK is becoming a more attractive forum for Computer-Implemented Inventions 

From a practical perspective, the UK has become a more favourable jurisdiction for CIIs than it was under Aerotel. The eligibility hurdle is lower, more applications should enter substantive examination, and UK practice is now more closely aligned with the EPO's established approach. This should improve consistency for applicants pursuing parallel UK and European patent strategies and may also increase confidence in pursuing protection directly before the UKIPO. 

 

The changes may also encourage some applicants to place greater emphasis on direct UK filings. Under the previous regime, applicants seeking protection for software-related inventions often viewed the European patent route as the more predictable option, despite the additional cost and complexity associated with obtaining and validating a European patent. With UK practice now significantly closer to that of the EPO, applicants may increasingly feel able to pursue protection directly before the UKIPO, particularly where the UK represents a key commercial market or where budget considerations favour a national filing strategy.  

 

This does not mean that the UK and EPO approaches are identical, nor that the European route has become any less important. However, the Supreme Court's decision and the UKIPO's subsequent guidance have certainly strengthened the position of the UK as an attractive standalone forum for securing protection for AI and other software inventions.  

 

The missing piece: how will Inventive Step be assessed? 

While the guidance provides welcome clarity on the end of the Aerotel era, it offers less insight into the question that is likely to dominate future disputes. 

 

The Supreme Court expressly declined to provide detailed guidance on how the intermediate step should be applied. While it confirmed that Pozzoli remains a legitimate framework for assessing inventive step, it stopped short of explaining how the new filtering exercise should be incorporated into that analysis. The UKIPO guidance largely mirrors the Court's approach and provides little further direction.  

 

As a result, for now, practitioners are left with a framework but little guidance on its application. We know that the intermediate step must be performed. We know that only technically contributing features can support inventive step. What remains unclear is how those determinations will be made in complex cases, particularly in fields such as AI, data processing, and software architecture.  

 

Our perspective 

The UKIPO's guidance is a positive and necessary response to the Supreme Court's decision. It provides welcome confirmation that more computer-implemented inventions will proceed to search and substantive examination, and it should reduce the number of applications refused solely on eligibility grounds.  

 

The guidance also confirms that the UK has moved significantly closer to the EPO's approach. For many applicants, particularly those pursuing European and UK applications in parallel, that greater alignment will be a welcome development. 

 

However, the guidance is more notable for what it does not say than for what it does. The UKIPO has provided a clear procedural framework, but little substantive guidance on how technically-contributing features are to be identified in difficult cases or how that exercise will interact with the UK's established Pozzoli approach to inventive step. In particular, the guidance provides almost no insight into how the filtering of technical and non-technical features will be carried out in practice. 

 

For now, the UK is undoubtedly a more welcoming jurisdiction for AI and other CIIs than it was under Aerotel. The Supreme Court has lowered the eligibility hurdle and opened the door to substantive examination for a wider range of inventions. Whether that translates into a materially easier path to obtaining software patents will depend on how the UKIPO and the courts develop the law on inventive step over the coming years. 

 

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in August 2026.