Longstanding Test For Patentability In UK Reversed By UK Supreme Court; Patentability Of Artificial Neural Networks Also Addressed

On February 11, 2026, the Supreme Court of the United Kingdom (the Court) released its decision in Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks, [2026] UKSC 3. The judgement marks a significant shift in UK patent law, overturning the longstanding test for patentability established in Aerotel Ltd v Telco Holdings Ltd, [2007] RPC 7 (Aerotel), and considering the patentability of artificial neural networks (ANNs).

Emotional Perception AI Ltd. (the Applicant) applied for a patent relating to an ANN that provides media recommendations to users. The ANN analyzes the physical properties of media files in order to recommend other files that are likely to elicit a similar emotional response. The UK Intellectual Property Office (UKIPO), applying the Aerotel framework, rejected the application on the basis that the claimed invention fell into an exclusion for patentability for “programs for computers… as such,” under article 52 of the European Patent Convention (EPC) and corresponding UK patent law.

The High Court allowed the Applicant’s appeal, concluding that the ANN was not a program for a computer and therefore did not fall within the exclusion. This finding, however, was overturned by the Court of Appeal, which restored the decision of the UKIPO.

On further appeal, the Court first considered whether to depart from the Aerotel approach. The European Patent Office (EPO) had previously rejected the Aerotel approach as inconsistent with the EPC. Though EPO decisions are not binding on UK courts, the Court emphasized that, in order to create consistency across contracting states of the EPC, such decisions should be followed unless the Court is convinced that they are clearly wrong. As a result, the Court rejected the Aerotel framework in favour of a more recent approach adopted by the EPO known as the “any hardware” approach. Under this approach, if the subject matter of a claim involves the use of any hardware, then it is not excluded from patentability.

The Court then turned to the question of whether the ANN was excluded from patentability. Though the Court found that the ANN was indeed a program for a computer, it did not find that it was excluded “as such”. In applying the “any hardware” approach, the Court found that the ANN met the low threshold for patent eligibility as it requires some form of computer hardware for its implementation. The Court then commented on the next stage of the analysis, involving the “intermediate step” approach adopted by the EPO.

As the parties’ arguments had so far relied on the Aerotel approach, the Court found it would not be appropriate to make its own determination regarding the ANN’s novelty and inventive step. The Court therefore allowed the appeal and remitted the matter back to the UKIPO for redetermination under the correct legal test.

Summary By: Claire Bettio