In February 2026, the Supreme Court handed down judgment in Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3. This decision has reshaped the law on how excluded subject matter is assessed in UK patent law. The Supreme Court held that Artificial Neural Networks (ANNs) are not excluded from patentability merely because they constitute computer programs.
The Background
This case concerned an ANN which is a network of artificial neurons similar to those in the brain. An ANN can be trained through machine learning to perform specific tasks or functions.[1]
The UK patent application, filed on 3rd April 2019, claimed a system and method in which a trained ANN recommended media files based on similarities physical properties of the files that match with human emotional responses.
In this system, an ANN trained on semantic features (subjective descriptors such as “sad” or “happy”) and an ANN trained on physical/musical features (tempo or volume) combine to produce similarity scores for musical works. Recommendations are then made to the listener based on both musical and emotional features of the music.
The Relevant Law:
Under section 1(2)(c) of the Patents Act 1977, a “program for a computer” is excluded from patentability “as such”. This means that a computer program that does not produce a technical effect or solve a technical problem will not be patentable.
Before Emotional Perception AI, the four-step approach in Aerotel Ltd v Telco Holdings Ltd [2007] RPC 7 was used to determine whether a computer program fell within this exclusion:
- Properly construe the claim;
- Identify the actual or alleged contribution;
- Determine whether the contribution falls within an excluded category; and
- Determine whether the contribution is technical in nature.[2]
The Judgment
The Supreme Court unanimously allowed Emotional Perception AI’s appeal and held that the Aerotel approach should no longer be followed because it was incompatible with the “any hardware” approach approved in G1/19.[3] The correct approach is to first determine whether the claim discloses an invention, and then assess the novelty, inventive step, and industrial application of the claimed invention.
In this correct order, there is an “intermediate step” in which a claim is construed to assess which features contribute to the invention’s technical character as a whole.[4] This enables an accurate assessment of whether the relevant features contribute to that technical nature. Through this intermediate step, non-technical features of the invention are not considered when it comes to the later assessments of novelty and inventive step.
A New Approach to the Patentability of Computer Programs in the UK
This is a significant decision that has transformed the patentability of computer programs in UK patent law. The Supreme Court overturned a nearly 20-year-old judgment and brought UK law more in line with the approach of the EPO. By doing so, it is likely inventors in the AI space will benefit from reduced divergence between the decisions of the UKIPO and the EPO. Going forward, it will be simpler and more predictable for those inventors who are seeking patent protection from both the UKIPO and the EPO.
The “any hardware” approach introduced by this decision means that AI inventions will not be excluded from patent protection solely because they involve a computer program. This change has, in effect, lowered the eligibility threshold for computer-implemented inventions with the result that a claim involving a form of hardware can constitute an invention under section 1(1) of the Patents Act 1977, as the UKIPO explained in their July 2026 Practice Note. Potentially, an ANN, AI or computer program invention will pass this threshold if a reference to physical hardware is included in the application. Going forward, it is likely that fewer AI patent applications will fall at the first hurdle. Nonetheless, it remains the case that any such invention will need to satisfy the further and more stringent requirements of novelty and inventive step.
[1] See Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3, [3]-[6] for a fuller explanation of the features of the ANN.
[2] Aerotel Ltd v Telco Holdings Ltd [2007] RPC 7, [40].
[3] Emotional Perception AI, [56].
[4] Emotional Perception AI, [104]-[107].
Written by Nicholas Gillyon
29 September 2026