Patentability of AI – The UK Supreme Court Perspective on Emotional Perception

As the development of Artificial Intelligence (AI) moves on apace, the ability to patent AI-related inventions becomes ever more strategically important, not least to secure competitive advantage and attract investment. The legislative framework governing patentability in the UK dates back to 1977, when the sort of AI systems that we are seeing today were the stuff of science fiction. So it is no wonder that clarity as to how those laws will be applied to AI-related inventions is much needed.

A judgment handed down by the UK Supreme Court this week (Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3) provides eagerly awaited guidance on whether an aspect of AI, namely an Artificial Neural Network ("ANN"), can be patented in the UK. It is the most significant test yet of how UK law treats patentability of AI.

 

The law

One of the main issues faced when trying to patent AI inventions in the UK is the law relating to exclusions from patentability. UK legislation¹ declares that anything that consists of certain categories of excluded matter, such as "a program for a computer … as such" or a mathematical method, is not an invention and therefore cannot be protected by a patent. AI by its nature is based on computational models and mathematical algorithms, so these statutory exclusions raise tricky questions as to whether it is possible to patent AI-related technology.

There is not an absolute bar to patenting computer-related inventions. If the technology is considered to comprise a computer program, it may still be patentable if it amounts to more than a computer program (thereby avoiding the "as such") due to the presence of certain technical features – the subject matter of the claims must have technical character.

For the past 20 years, the assessment of this necessary technical contribution has been carried out in accordance with a 4-step structured approach developed through case law (the Aerotel test1) in which the claim was construed (Step 1), the actual contribution was identified (Step 2) and the question was then asked as to whether the contribution fell solely within the excluded subject matter (Step 3). Finally, there was consideration as to whether the contribution was actually technical in nature (Step 4). In practice, the test involved consideration of the problem to be solved by the alleged invention, how the invention worked, what the advantages were and what the inventor had added to human knowledge. The central question was whether the invention as defined in the patent made a novel technical contribution, with subject matter which fell within the exclusion being disregarded for assessing this.

 

The Emotional Perception case

The Emotional Perception case is an appeal through the courts challenging a decision by the UK Intellectual Property Office (UKIPO) to refuse to grant a patent applied for by Emotional Perception. The patent application claimed an improved system for providing media file recommendations to an end user, including sending a file and message in accordance with the recommendation. This might be used, for example, by a music website where a user may be interested in receiving music similar to another track. In contrast to existing systems where similar tracks are suggested according to a category derived from human classification (rock, heavy metal, folk, classical etc) or human-compiled playlists, the claimed advantage of the invention is that the AI system can offer suggestions of similar music in terms of human perception and emotion irrespective of the genre of music and the apparently similar tastes of other humans. The invention arrives at these suggestions by passing music through a trained ANN.

The important question addressed by the UKIPO and the courts is whether an ANN engages the statutory exclusion from patentability of a program for a computer as such. The UKIPO found that it does. In contrast, the High Court held that an ANN was not a computer program and that, even if it was wrong on that, the ANN in Emotional Perception's system would still be patentable because it amounted to more than a computer program as such due to the presence of a technical effect (the transfer of a file to the user) (Emotional Perception AI Ltd v Comptroller-General of Patents [2023] EWHC 2948 (Ch)). My analysis of that decision can be found here.

At the time, it was hoped that the High Court decision would pave the way to make it easier to patent AI inventions in the UK. However, any comfort was short-lived as the decision was appealed to the Court of Appeal which reversed the judgment (Comptroller-General of Patents v Emotional Perception AI Ltd [2024] EWCA Civ 825). My analysis of that decision can be found here.

On 11 February 2026, the Supreme Court handed down a further instalment in the Emotional Perception story. This is the final legal perspective on the test to be applied to the issues that were encountered in relation to patentability of AI, although not the final answer on Emotional Perception's patent application.

 

The decision

The Supreme Court held that a "program" should be interpreted to mean a set of instructions capable of being followed by a computer of any kind, to produce desired manipulations of data. An ANN falls within this definition and, accordingly, is a computer program.

In assessing whether there are technical features that take the invention outside of the exclusion for "computer programs as such", the Supreme Court has decided that the Aerotel test should no longer be followed and instead it adopted an approach more in line with that taken by the European Patent Office. This "any hardware" approach assumes that the relevant technical means are present because computer hardware is needed to implement the ANN, so the ANN is not a program for a computer "as such".

In this case, the Supreme Court found that, although the claimed method involves an ANN which is a program for a computer, it also involves technical means because the ANN can only be implemented on some form of computer hardware. In addition, the patent claims refer to a database for storing data files, a communication network and a user device – all of which require or constitute hardware. That was sufficient to show that the subject matter of the claims has technical character and is not a computer program "as such".

The result of the Supreme Court judgment is that AI inventions will now be considered in line with the usual requirements for patentability of any invention (they must be new, inventive and capable of industrial application), subject to a new "intermediate step" prior to that analysis. In this intermediate step, features of the invention which do not contribute to, or interact with, the technical character of the invention viewed as a whole are filtered out from the assessment of patentability, so they do not play a part in consideration of inventive step. The function of this intermediate step is therefore concerned with excluding features of the invention from subsequent consideration rather than with determining the patentability of the invention as a whole.

The Supreme Court describes this step as a "feature-by-feature approach" (in contrast to the Aerotel test, which considers more holistically whether the contribution of the claimed invention viewed as a whole is technical in nature – something the Supreme Court described as "the very opposite" of the intermediate step). However, the intermediate step does not involve assessing each feature of the invention by asking whether the feature is itself, viewed separately, technical or non-technical. The sole criterion is whether the feature contributes to the technical character of the invention as a whole. Thus, technical features may be filtered out because they make no such contribution and non-technical features may be left in because they do make such a contribution. It is not relevant, at the stage of the intermediate step, whether the technical character of the invention appears to be novel or inventive.

This approach has never been applied before in the UK. As the case had not been argued on this basis, the Supreme Court has referred the case back to the UKIPO to apply the intermediate step and the remaining requirements for patentability of the claimed invention.

 

Discussion

The judgment of the Supreme Court in Emotional Perception is the most significant test yet of how the law in the UK treats the patentability of AI and gives much needed clarity on the approach that will be taken by the UKIPO and the courts.

There is a new approach to examination of computer-related inventions. The use of the "any hardware" approach means that there is now a very low hurdle for satisfying the "invention" test and avoiding the "computer program as such" exclusion from patentability. According to the Supreme Court, this addresses "the question whether the claim amounts to an "invention", uncluttered with any assessment of contribution, novelty or inventive step".

This provides a clearer, and possibly easier, path to securing patents on AI-related inventions and may mark the dawn of an increasingly AI-friendly era in the patent world, in the UK at least. ANN implemented inventions are in no better and no worse position than other computer-implemented inventions. Whilst the law is different in the US, recent decisions by the USPTO have also shown a move towards patent eligibility for AI-related inventions. However, it remains to be seen whether those patents stand up to challenge in the US courts.

Following the High Court judgment in Emotional Perception, the UKIPO’s guidelines for examining patent applications relating to AI were temporarily suspended, eventually being updated in early 2025 to align with the Court of Appeal ruling. The guidelines therefore currently provide that ANNs are considered computer-implemented inventions and consequently are subject to the "computer program as such" exclusion unless they provide a specific technical contribution. Whilst this largely holds true following the decision of the Supreme Court, the change in approach to carrying out that assessment and the introduction of the "intermediate step" before assessing novelty, inventive step and industrial application will undoubtedly require a further re-working of the guidelines.

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¹ Patents Act 1977, section 1(2)