Emotional Perception Redefines AI Patents: The UK Supreme Court’s Groundbreaking Shift in Computer-Implemented Inventions

^[1] In a recent development, the UK Supreme Court ruled that Artificial Neural Networks (ANNs) are not excluded from patentability due to being a computer program “as such.” In doing so, the Court set out the framework of a new test for the UK Intellectual Property Office (IPO) to use when evaluating the patentability of computer. The ruling breaks down barriers to the patenting of AI algorithms in the UK and paves the way for a wider change in the UK IPO’s approach to assessing excluded subject matter.

Summary

For your pending UK patent applications: New strategies are available for computer-implemented inventions.

For your recent computer-implemented inventions: The UK is now a more friendly patent jurisdiction.

Background of the Case

This Supreme Court decision concludes a series of appeals concerning a patent application directed to a particular type of artificial intelligence: ANNs.^[2] In the lead-up to this decision, the UK IPO hearing officer and the subsequent appeal duly applied guidance from the test applied in the UK case Aerotel Ltd v Telco Holdings Ltd [2006] (colloquially known as “the Aerotel test”).

The Aerotel test has historically been the main legal framework in the UK for deciding whether computer-implemented inventions are excluded from patentability for being computer programs “as such.” The phrase “as such” is important: it means that if an invention is exclusively a computer program, it cannot be patented. However, if the invention includes technical features that go beyond a computer program, it may still be eligible for patent protection.

The steps of the Aerotel test are defined as follows:

1. Properly construe the claim. Interpret what the patent claim actually covers.
2. Identify the actual contribution. Determine what contribution the invention makes over the art, beyond just a simple implementation of the idea.
3. Ask whether it falls solely within the excluded subject matter. Check whether the claimed invention consists solely of subject matter excluded from patentability under UK law as such (such as business methods, mathematical methods, or computer programs).
4. Check whether the actual or alleged contribution is technical in nature. Assess whether the inventive contribution is of a technical character, distinguishing it from non‑patentable subject matter.

The application of the Aerotel test has, to date, resulted in the categorisation of many computer-implemented inventions as being directed exclusively to a computer program, and therefore as non-patentable subject matter.

The New Supreme Court Test Takes Inspiration From EPO Case Law

In a game-changing development for the UK, the Supreme Court decided that the Aerotel test was unsuitable for determining whether a patented invention is directed to a computer program “as such.” The Board decided, instead, that it was the decisions of the European Patent Office’s (EPO’s) Enlarged Board of Appeal that should be consulted in determining the appropriate test for whether such inventions constitute unpatentable subject matter.^[3] Specifically, the Supreme Court endorsed the first six of the “Duns principles” affirmed in the Enlarged Board’s decision of G1/19. The Supreme Court sets out a new approach for assessing the patentability of computer-implemented inventions, on the basis of G1/19 and the Duns principles, as defined below:

• Step 1: Determine whether the subject matter claimed in a patent application qualifies as an invention. This determination is made using the “any hardware approach.” This approach requires that patent claims referring to hardware, even method claims that recite the use of such hardware, qualify as inventions. Thus, a claim directed to a computer-implemented method is not defined as a computer program “as such” if it refers to the use of a computer, a computer-readable storage medium, or another similar technical means.
• Step 2: Perform an “intermediate step” in order to determine which features of the invention contribute to the technical character of the invention. This step follows the Duns principles from EPO Enlarged Board Case Law (G1/19). The Supreme Court emphasised that the features that contribute to the technical character of the invention may, in some instances, be non-technical features by themselves. The decision of whether the features contribute to the technical character is performed by observing the invention as a whole.
• Step 3: Assess the industrial application, novelty and, in particular, the inventive step of the contributing features determined in step 2.^[4]The Supreme Court declined to comment, in its ruling, as to whether the inventive step assessment needs to be adjusted from the Pozzoli approach that is currently applied by the IPO (and English courts).

The Decision Regarding Emotional Perception

Having laid out their new approach to assessing computer-implemented inventions, the Supreme Court went on to declare that, whilst ANNs are “programs for computers,” they are not computer programs “as such.” Their reasoning was that ANNs involve technical means because they can only be implemented on some form of computer hardware. Explicit mention was made, in the claims of the Emotional Perception application, to hardware elements including a database for storing data files, a communications network, and a user device; all of which constitute different types of hardware. These claimed elements fulfilled the “any hardware” test laid out in step 1 of its approach.

The Supreme Court therefore concluded that the UK IPO had been wrong to decide that the application should be refused for excluded subject matter, and the case was remitted for more detailed assessment of novelty and inventive step.

Why This Matters

The decision is expected to result in AI software-based patent applications being less likely to fall foul of the UK’s excluded subject matter provisions, and in greater numbers of these applications passing through to the later stages of examination involving detailed assessment of novelty and inventive step. The newly endorsed approach brings the English courts into much closer alignment with the EPO’s “mixed invention” approach used to deal with patent claims including both technical and non-technical features. 

This represents a dramatic shift in the manner in which computer-implemented inventions are assessed by the UK courts and will lead to significant practices changes at the UK IPO. The “any hardware approach” represents a significant departure from the approach taken previously in the UK. Previously, under the Aerotel test, UK examiners would ask whether the “actual contribution” made by the invention was technical in nature, whereas now the mere presence of hardware or references to hardware will be sufficient to clear the exclusion hurdle. This represents a lowering of the exclusion bar and by applying sensible claiming strategies we can expect fewer AI software cases, and fewer computer implemented inventions in general, to fall foul of the exclusion.  

Equally interesting is the new intermediate step requirement to disregard the features (whether technical or non-technical) which are not deemed to contribute to the technical character of the invention in the assessment of novelty and inventive step. The new test makes clear that non-technical features “as such” do not provide a contribution to the prior art and are therefore to be ignored in assessing novelty and inventive step. But the phrase “non-technical features as such” means only non-technical features which do not interact with the technical subject matter of the claim. Technical features and those non-technical features which do interact with the technical subject matter of the claim are therefore to be taken into account in the assessment of inventive step. Whether such features contribute to the technical character of the invention has to be assessed in the context of the invention as a whole. The objective is to filter out features which do not contribute the technical character of the invention, viewed as a whole, to ensure they are not considered as contributing to inventive step.

This change means that the higher number of cases reaching this stage will still be subject to a robust assessment in connection with inventive step. In practice, the English courts will need to provide further guidance in terms of what types of features will be regarded as capable of contributing technical character of the invention and those that will not. There is extensive EPO case law from the Technical Boards of Appeal that may assist with these questions of whether a particular feature contributes to the technical character of the invention or not — for example, it is trite law that the EPO would disregard claim features that in practice amount to business administration (as non-technical features) and will not usually take such features into account when assessing inventive step. We see that claims at the EPO need to make a non-obvious technical contribution over the art, with the non-technical features being disregarded, in order for inventive step to be recognised. This is a relatively high bar and leads to many software claims that pass the EPO’s “any hardware” requirement failing later at the inventive step test.

Generally speaking, the EPO determines whether or not the claim makes a non-obvious technical contribution using the problem and solution approach and taking into account only technical features. However, it is interesting to note that the UK Supreme Court did not develop inventive step considerations any further or provide guidance on the relationship between the new intermediate step and the established Pozzoli inventive step assessment under English law, which requires identification of the relevant common general knowledge before an assessment of whether differences between the claim and the state of the art are obvious. We will need to watch the continuing examination process to see how this new guidance and the established Pozzoli test plays out, unless other applications are escalated through the court system in the interim.

Parallels With U.S. Law

The United States has recently undergone a similar shift following the USPTO’s precedential Ex parte Desjardins on November 4, 2025, which held that claims directed to training a machine learning model are patent-eligible under 35 U.S.C. § 101 when they integrate a mathematical concept into a practical application that improves how the model operates.^[5] Like the UK's movement away from the restrictive Aerotel test, the USPTO’s Appeals Review Panel (ARP) relied on Enfish to recognize that "Software can make non-abstract improvements to computer technology just as hardware improvements can," in this case finding that AI systems that use less storage capacity and achieve reduced system complexity reflect "an improvement to how the machine learning model itself operates."^[6] The USPTO moved quickly to implement Desjardins, instructing examiners on December 5, 2025, to evaluate patent applications for detailed, non-conclusory disclosure of technological improvements and avoid overgeneralizing limitations as "generic computer components" when they describe technical improvements.^[7] Both the U.S. and the UK have thus evolved toward a more permissive initial eligibility threshold while maintaining rigorous scrutiny at later stages, with the ARP emphasizing that "§§ 102, 103 and 112 are the traditional and appropriate tools to limit patent protection to its proper scope"—a position mirroring the UK Supreme Court's emphasis on robust inventive step assessment following the initial eligibility hurdle.

Key Takeaways

• The UK IPO’s approach to assessing excluded subject matter for computer-implemented inventions has been brought closely into line with the approach applied by the EPO.
• The bar for the UK IPO to agree to perform a prior art search for a computer-implemented invention has been lowered, which should result in a greater number of AI and computer-implemented inventions being searched within their first year of filing. The UK IPO will, at least until new practice guidance is established, end its practice of declining to conduct a search for claims based on Section 1(2)(c) of the Patents Act until further notice.
• The UK IPO will likely not initiate searches for cases that have already received an opinion under Section 17(5)(b), unless requested by the applicant. If requested, a complete search will be carried out with priority likely to be given to pending applications still within their priority year.
• For pending cases that have received objections based on Aerotel, the UK IPO would doubtless appreciate a response with reasoning explaining the two steps of (i) identifying an invention and (ii) identifying claim features that contribute to the technical character of the claimed invention (following UKSC 3, G1/19 and Duns Principles A-F). 
• We can expect the UK IPO to be sympathetic to extensions of time for responding to examination reports based on the old approach. Similarly, we can expect the UK IPO to exercise its discretion to allow modest extensions to the compliance period for putting applications in order for allowance where the reason for a delay can be attributed to objections based on the old approach.
• The UK IPO has also indicated that it intends to review and likely reschedule any currently scheduled hearings dealing with objections under Aerotel, preferring to allow at least one round of correspondence directed towards an assessment of such cases under the new approach before rearranging a hearing.
• Finally, for applications that have been allowed to pass the formal date for requesting examination without examination having been requested, on the basis of refusal to search based the old approach, then the UK IPO allows a two-month “as of right extension” and potentially also a further discretionary extension.
• We recommend patent applicants seek specific advice on their scenarios with their usual UK patent attorney firm.
• Going forward, UK patent attorneys should consider drafting patent applications for AI and other types of computer programs so that their claims recite the use of any form of hardware. Examples of hardware that were recited in Emotional Perception’s application included a database, a network, and a user device. It is possible that the use of the term “computer-implemented,” alone, in a claim may be sufficient to fulfil the any hardware requirement.
• During prosecution, it should be noted that an excluded subject matter objection raised against a computer-implemented invention is likely to be addressed by introducing the use of a hardware element into the claims.
• When preparing patent applications, UK patent attorneys should use EPO case law as a guide. They should highlight the technical features of the invention and clearly explain its inventive step position, as these elements strengthen the case for patentability during prosecution.
• Attorneys should be on the lookout for further case law that determines whether/how the use of the Pozzoli approach will persist in view of the move away from the use of the Aerotel test.
• The Supreme Court’s new test may be applied to other fields of excluded subject matter, such as mathematical methods, scientific theories, and methods of doing business.