The case concerns an application directed to an artificial neural network (ANN) used to organise music files, where the United Kingdom Intellectual Property Office (UKIPO), High Court and Court of Appeal differed in their views as to whether an ANN should be considered a computer program “as such”. The appeal to the Supreme Court raised three issues, which were addressed in the judgment.

Should Aerotel be followed?

In the established Aerotel four-step approach used in the UK, the central question is whether the invention makes a novel technical contribution, but that excluded subject matter does not count for this purpose. In contrast, the “any hardware” approach applied by the European Patent Office (EPO) and endorsed in G 1/19 sets out that subject matter will not be excluded from patentability if it embodies or involves the use of physical hardware (although it may still lack inventive step).

The Supreme Court decided that the Aerotol approach merges the assessment of whether or not there is an invention with that of novelty and inventive step, when they should be treated separately.  It considered the G 1/19 approach, where the question of whether the claim amounts to an invention is considered first and separately from novelty and inventive step, to be better at solely addressing the question whether the subject matter of the claim is an invention or not. It did, however, make it clear that the Pozzoli method is still the recognised method for assessing inventive step in the UK, and that the “any hardware” approach can co-exist with the Pozzoli method.

Is an ANN (or does it contain) a “program for a computer”?

The Supreme Court agreed with the hearing officer’s characterisation that an ANN is set of instructions to manipulate data, and therefore that an ANN is a program for a computer “as such”. The court also rejected distinctions between “hardware ANNs” and “software ANNs”, treating ANNs as abstract computational models whose topology, activation functions, weights and biases together constitute instructions to hardware.

Is the entire subject matter of the claims excluded?

Applying the any hardware approach, and in considering an ANN to be a program for a computer, the Supreme Court decided that the claims were directed to an invention, acknowledging that the “any hardware” approach provides a very low hurdle to clear in order for the claims to be considered an invention. This also means that an invention directed towards a pure computer program “as such” is not excluded from patentability if it requires physical hardware for implementation.

The Supreme Court acknowledged the need for the intermediate step of G 1/19; to filter out features which do not contribute to the technical character of the invention as a whole. Since this step in G 1/19 is drafted in terms of the technical solution to a technical problem (drawn from the EPO’s problem-solution approach to inventive step), it decided to not to follow it, noting the UKIPO and UK courts are open to adopt any appropriate method of identifying technical character. Since this intermediate step has not been applied in the UK before, the Supreme Court did not consider it appropriate for it to define this step or perform it on the claims of the patent in suit. The court therefore referred the application back to the UKIPO for reconsideration without any further comment as to the patentability of the application.

This decision will not only have an impact on AI patentability in the UK, but also provides a degree of harmonisation between the UK and EPO with regard to how computer implemented inventions are evaluated, even if the exact approach to be adopted in the UK is still to be defined.

A more detailed analysis of this judgment and its implications will follow.

Case details at a glance

Jurisdiction: England and Wales
Decision Level: Supreme Court
Parties: Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks
Citation: [2026] UKSC 3
Date: 11 February 2026
Decision (PDF): https://dycip.com/2026-uksc-3