UK Supreme Court issue major judgement relating to patentability of software and AI

The UK Supreme Court has issued a major judgement on computer software and AI patentability that is likely to significantly impact and improve the patentability of software patents in the UK.

In the case of Emotional Perception -v- Comptroller of Patents, Designs and Trade Marks Emotional Perception AI Limited (Appellant) v Comptroller General of Patents, Designs and Trade Marks (Respondent), the Supreme Court has decided that the approach that has been taken in Aerotel Ltd v Telco Holdings Ltd ("Aerotel") should no longer be followed. 

Under Aerotel, Patent Office Examiners and Courts were obliged to consider a four-step test for assessing whether a claim is excluded from patent eligibility: a) Construe the claim; b) Identify the actual/alleged contribution; c) ask whether the contribution is excluded; and d) check if the contribution is technical. 

In the Emotional Intelligence case the UKIPO initially applied the Aerotel test on the claims, which were related to a system for providing music recommendations based on an artificial neural network (ANN),  and found this was  ineligible for patent protection since it was argued that the contribution fell solely within the computer programme exclusion and that the ANN base system was not technical in nature. 

The UKIPO decision was appealed to the High Court and then to the Court of Appeal and was finally heard by the Supreme Court who issued a judgement on 11 February 2026. 

In the Supreme Court Judgement it was ruled that the UKIPO and lower courts had not interpreted Article 52 of the European Patent Convention (EPC) correctly and that Courts and the UKIPO should now follow the EPO’s interpretation according Enlarged Board of Appeal Decision G1/19. View decision datasheet here. 

This approach, which is rather different to that of Aerotel, holds that any technical feature in a claim, for example even a broad feature that a method is "carried out by a computer" means that the claim is not excluded from patentability but that non-technical features generally do not contribute to inventive step. 

Thus, whereas under the Aerotel test patent claims were often rejected as relating to excluded matter per se, under the test now to be applied if there are any technical features in a claim this means that the claim is not to be considered as excluded from patentability and must then be examined for novelty and inventive step. To do this, any non-technical features in the claim are excluded from contributing to inventive step but the test is now one of novelty and inventive step for most software inventions rather than a simple exclusion causing a rejection of the claim.

This represents a significant change in the way AI and other software inventions are considered and brings UK practice into line with that of the EPO.

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