UK Supreme Court hits reset for patents on computer programs

In a decision that may improve chances of getting patents granted for some computer related inventions in the UK, particularly in AI, the UK's Supreme Court has, in our view, opened the door for applicants to have a fairer opportunity to argue about the contribution provided by their invention.

A recent series of cases brought by Emotional Perception AI Limited before the UK Courts have challenged patentability provisions surrounding computer related inventions. In its decision of 11 February 2026, the UK's Supreme Court had the final say on this matter, setting matters straight on what might be considered to be a computer and a computer program. Importantly, the decision also concluded that the UK Court's tests to assess patentability in this area was flawed and that the European Patent Office's (EPO) approach (set out under G1/19) should be followed. This will result in a change in approach to assessing computer related inventions by the UKIPO and, in all likelihood, greater consistency with EPO decisions.

Background

UK and European patent law have an exclusion from patentability of a computer program but which states that the law "shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a UK/European patent application or UK/European patent relates to such subject-matter or activities as such". In other words, you can escape the exclusion if the invention is not a computer program or if it includes a computer program but does more – it extends beyond being a computer program as such.

How to decide if an invention is a computer program as such?

UK Patent law is governed by the Patents Act 1977, which declares that it is aimed "to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention". However, the assessment on whether an invention was a computer program as such was initially set out in a UK decision Aerotel at a time when the approach taken by the EPO had not settled.

15 Years later and after a great many decisions from both the UK and EPO, the EPO's highest forum, the Enlarged Board of Appeal, decided this question in G1/19:

"a claim directed to a computer-implemented invention avoids exclusion under Art 52 EPC merely by referring to the use of a computer, a computer-readable storage medium or other technical means".

This is a different approach to that set out in Aerotel and resulted in the EPO allowing more cases through this stage where it then assessed them for technical character as part of inventive step assessment.

The Supreme Court decided:

"The Aerotel approach at best jumbles up the test of an invention with the other requirements for patentability (if indeed it mentions that first question at all) and reverses the logical order of analysis by starting with contribution to the known art (step 2), then addressing the article 52(2) exclusions (step 3), and then finally going back at step 4 to the "technical in nature" question, which is really an aspect of article 52(1).

For those reasons we consider that there is a compelling case, in the light of G1/19, for rejecting the Aerotel approach which is not met by any of the objections to doing so advanced on behalf of the Comptroller General. Of course, there is nothing wrong with step 1 in the Aerotel approach (construe the claim), nor has the EPO suggested that there is. But steps 2 to 4 cannot be maintained."

Effect on inventive step assessment

The EPO also has a different approach to inventive step (the EPO use a problem-solution approach whereas in the UK it is assessed under the so-called "Pozoli" questions). However, the Supreme Court considers that this can be accommodated and that:

"The approach which should be adopted by courts in the UK is that contained in the Duns principles other than principle G (and the second paragraph of the Comvik headnote), as explained by the further reasoning in G1/19, in particular about the need for an intermediate step between "any hardware" and inventive step to determine which features in a "mixed" invention contribute to its technical character: see again para 39 of the Board's reasons. This is for the purpose of excluding non-technical features (ie features which do not contribute to the technical character of the invention) when assessing at the next stage whether the invention involves an inventive step in relation to the prior art"

Is an ANN a computer and does a trained ANN include a computer program?

As reported previously, Emotional Perception's patent application concerned a system that trained and used a form of AI, an artificial Neural Network (ANN). It sought to distinguish a trained ANN from a computer program because the training of the ANN resulted in a machine that was not, in their opinion, directly linked back to the computer program that implemented the ANN.

The UK Courts were initially persuaded by this line of argument but this was reversed on appeal and the UK Court of Appeal went further, providing a definition of "computer" so as to enable determination of what a program for a computer might be.

Sensibly, the Supreme Court have decided that there is no need for a definition for "computer" and "computer program" as this risks future technologies such as quantum computers and beyond falling into unintended loopholes. It also (correctly in my view) decided that

"Whatever the specific form of the machine on which an ANN is implemented, the ANN constitutes, in essence, a set of instructions to manipulate data in a particular way so as to produce a desired result. In other words, an ANN is a program for a computer."

Implications

We welcome the Supreme Court's decision. It brings clarity and consistency to an area where the UK shares the same wording of law as that governing the EPO and where application ought to be consistent.

The UKIPO will have to re-evaluate its examination process and there will be pending cases that will now need reconsideration. We do not expect that these changes will significantly change the number or type of applications allowed, although it should mean that applicants get a fairer opportunity in the UK to argue for granting of a patent for their invention, particularly in borderline areas.