Supreme Court resets UK Approach to AI Patenting

 

The appellant applied for a patent covering a system that uses an ANN to recommend media files, such as music or videos, likely to evoke a similar emotional response to an existing file. The UK Intellectual Property Office (UKIPO) refused the application, ruling that it concerned a “computer program … as such” and was therefore excluded from patentability under section 1(2)(c) of the Patents Act 1977, reflecting Article 52(2) and (3) of the European Patent Convention (EPC). While the High Court allowed an appeal, the Court of Appeal reinstated the refusal. 

 

The Supreme Court unanimously allowed Emotional Perception’s appeal. It held that the long‑established Aerotel four‑step test, used by UK courts since 2006 to assess excluded subject matter, should no longer be followed. The Court accepted that the Aerotel approach is incompatible with EPC jurisprudence and has been decisively rejected by the Enlarged Board of Appeal of the European Patent Office in G 1/19. UK courts should instead align their approach with that adopted by the EPO, where the involvement of any hardware is enough to make an invention patent-eligible. 

 

Applying that approach, the Court held that although an ANN may properly be characterised as a “program for a computer”, a claim involving any hardware is not excluded by Article 52(2). The exclusion operates only where the claimed invention relates solely to excluded subject matter. As the applicant’s claimed system involves computer hardware, it was therefore not excluded at the threshold stage and could proceed to be assessed for novelty and inventive step. 

 

The decision is a significant clarification of UK patent law. After two decades in which UK practice had evolved in relative isolation following Aerotel, the judgment realigns the UK with the EPO and removes what had become a distinctly stricter domestic filter for software inventions. The decision confirms that AI‑implemented inventions are not barred from patent protection simply because they involve neural networks or machine learning. The judgment is expected to have a wide impact on how software‑related and AI patents are examined in the UK. 

 

It remains to be seen how the UKIPO will assess “technical subject matter” in practice now Aerotel is no longer to be applied. While the Supreme Court endorsed the EPO’s “any hardware” approach at the exclusion stage, it emphasised that identifying which features of a claim contribute to technical character is a separate and subsequent inquiry, relevant to novelty and inventive step. The Court left it open to the UKIPO and the courts to adopt appropriate tools. In the short term, some uncertainty is likely as examination practice adjusts, particularly for AI‑implemented inventions whose contributions lie in data processing, modelling or classification rather than in improved computer operation. 

 

From a practical perspective, the judgment lowers the risk that AI‑related and software‑implemented inventions will be refused outright as excluded subject matter and ensures that more applications will proceed to substantive examination. At the same time, it shifts the real battleground to inventive step, where non‑technical features may be discounted and the technical contribution will be scrutinised in detail. Applicants can therefore expect fewer threshold exclusions, but not necessarily an easier path to grant. 

 

Read the press summary of UK Supreme Court's judgment online.

For more information, please contact Tom Mahon. 

 

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 May 2026.