On 11 February 2026, the UK Supreme Court handed down its judgment in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3. The five-justice panel,  Lord Briggs, Lord Hamblen, Lord Leggatt, Lord Stephens and Lord Kitchin,  issued a unanimous decision that fundamentally reshaped how UK patent law treats artificial intelligence, artificial neural networks and computer-implemented inventions. It has wider implications as well for other technologies.

For businesses developing AI systems, software-led products and neural-network-based technologies, this is a landmark ruling that changes the way patentability objections must now be analysed in the UK. For patent attorneys, examiners and applicants who have spent years working within the framework laid down by the Court of Appeal in Aerotel Ltd v Telco Holdings Ltd [2006], that old “contribution with rider” framework is now gone. Understanding what replaced it,  and what that means in practice, is the essential starting point for any AI patent drafting  and prosecution strategy at least in the UK.

What was the Emotional Perception AI case about?

The case concerned a patent application for a system and method that uses an artificial neural network (ANN) to generate file recommendations. The technology trains an ANN to replicate human emotional response to perceived similarity between media files, such as music tracks, videos or text, determined merely by reference to objectively measurable physical properties of those files rather than their semantic descriptions.

The invention was designed to improve recommendation services and content discovery search tools. At the heart of the application was a method of training an ANN to converge and ultimately align separation distances between file pairings in a physical “property embedding space” with corresponding separation distances in a “semantic embedding space,” the latter derived from how humans describe the same files in natural language. Once trained, the ANN could make semantically meaningful recommendations using only physical file properties, with the mapping retaining semantic information that is otherwise lost.

The UK Intellectual Property Office originally rejected the application on the basis that the claimed invention was excluded – under section 1(2)(c) of the Patents Act 1977 (UKPA) – from patentability for being a program for a computer “as such.”  Section 1(2) UKPA has, accoridnt to the statute, as near as practicable the same effect as article 52(2)(c) of the European Patent Convention (EPC). The High Court allowed an appeal; the Court of Appeal reversed that decision and restored the UKIPO’s rejection. The case then reached the Supreme Court on a further appeal by Emotional Perception AI, with this appeal truly thrashing out the fundamental issues surrounding the tenets of patentability, namely the treatment of invention and, moreover, how inventive step/obviousness is assessed.

Hepworth Browne acted as the instructing firm throughout these proceedings, with Bruce Dearling the case architect and instructing patent attorney for Emotional Perception AI. That direct involvement gives the firm detailed insight into the arguments developed across every level of the litigation and the practical consequences of the Supreme Court’s ruling.

What did the Supreme Court decide?

The Supreme Court resolved three principal issues and, in doing so, produced a ruling with far-reaching consequences for UK patent practice and, indeed, implications on a transcontinental basis.

Issue 1: Should the Aerotel approach be abandoned?

Yes. The court held that the four-step Aerotel approach – which had been applied by the UKIPO and UK courts for nearly two decades – should no longer be followed; it was “unsound.” Particularly, the court accepted that Aerotel was inconsistent with the approach approved by the EPO’s Enlarged Board of Appeal in G1/19-Bentley Systems, which had firmly endorsed the “any hardware” approach as the correct method for determining whether a claim amounts to an invention within the meaning of Art.52(2) EPC.

The EPO’s Board of Appeal had, for years, criticised Aerotel as not bring a good faith implementation of article 52, the decision being incompatible with it and based on a misunderstanding of the meaning of “invention” as used in the EPC. The Supreme Court accepted those criticisms and held that the Aerotel approach, which asked what the inventor had “really added to human knowledge” [as a way of testing whether the contribution fell within excluded subject matter] was methodologically flawed. It jumbled together the question of what constitutes an invention with the separate and independent requirements of novelty and inventive step, which must be assessed at a later stage.

In place of Aerotel, the court confirmed that the UK should adopt the same interpretation of Art.52(2) and (3) EPC, namely the “any hardware” approach as now confirmed by the EPO’s Enlarged Board of Appeal (EBA). Under this approach, a claim involving any piece of hardware,  including a conventional computer, a computer-readable storage medium or other technical means, is not a claim to excluded subject matter “as such” and therefore qualifies as an “invention” for the purpose of article 52.

Issue 2: Is an ANN a “program for a computer”?

Under UK law, the answer is presented “yes.” The court rejected the applicant’s primary argument that ANNs are not programs for computers at all and therefore fall entirely outside the computer program exclusion. The court held that an ANN, whether implemented in dedicated hardware or emulated in software on a conventional computer,  constitutes “a set of instructions to manipulate data in a particular way so as to produce a desired result” and is therefore a program for a computer within the meaning of Art.52(2)(c) EPC. The distinction between a “hardware ANN” and a software “emulation” of an ANN was rejected as conceptually untenable. This assessment is inconsistent with the approach of the EPO, and it is arguably wrong based on abstracted legal logic and a somewhat obtuse technical argument by the court.

Issue 3: Was Emotional Perceptions’s claimed invention excluded as a computer program “as such”?

No. Applying the “any hardware” approach, the court held that the claimed invention is not excluded as a program for a computer “as such” because the claim had hardware elements. The ANN clearly requires implementation on some form of computer hardware, and the claims also referred to a database, a communications network and a user device. As stated above, the presence of hardware is sufficient to bring the invention within the meaning of “invention” under Art.52 EPC/section 1(2) UKPCA and take it outside the “as such” exclusion. The application was therefore wrongly refused on these grounds, and the matter was remitted to the UKIPO to assess novelty and inventive step.

What is the “any hardware” approach and why does it matter?

The “any hardware” approach – the framework approved by the EPO’s Enlarged Board of Appeal – is a fundamentally lower threshold than the one applied under Aerotel. 

Under Aerotel, the analysis focused on what the inventor had added to human knowledge and required that, in addition, in totality was technical in nature. That approach consistently produced problematic outcomes for both AI and software applicants because the test made it easy for examiners to characterise the “real contribution” as arbitrarily excluded without a proper understanding of the nature of invention. Aerotel’s contribution is therefore a backward looking approach. The older approach under Aerotel also had implications for other fields of activity, including business methods. 

Protecting a method for performing a mental act, a mathematical method or a program for a computer [all] “as such,” are statutory exclusions under both Art.52(2) and (3) EPC and section 1(2) UKPA. However, without adequately considering the technical means through which that contribution was achieved, Aerotel was fundamentally flawed.

The point cannot be under emphasised; under the “any hardware” approach, the exclusion hurdle is cleared by the mere presence of hardware. 

However, the real analytical work has now been moved to the “intermediate step.” Whilst this is a filter, it operates to identify those features of the invention that contribute through interaction [in a causal positive way[ to the overall technical effect of the invention. Only then can the assessment of novelty and inventive step be undertaken.

The Supreme Court was clear that adopting “any hardware” does not mean that every AI or computer-implemented invention will be patentable. It means that the question of patentability must be addressed properly, at the right stage and with the right framework.

What is the “intermediate step” between any hardware and inventive step?

The intermediate step is one of the most practically significant aspects of the Supreme Court’s guidance. It arises because the “any hardware” threshold is deliberately low, and passing it does not mean the invention is automatically patentable. This intermediate analytical stage investigates whether claim features – particularly non-technical features – interact within the context of the invention “as a whole” and therefore contribute to the technical character of the invention “as a whole.”

This matters because claims for computer-implemented inventions, in all fields of technology, are not infrequently “mixed” claims in that they include both technical features and features. Viewing these is isolation removes the context of the invention. Indeed, it was recognised by the EPO – both at its Technical Board of Appeal (TBA) and its EBS – that non-technical features can contribute, in a positive sense, to patentable innovation. Non-technical features that interact with the technical subject matter of the claim and contribute to a technical effect [in a technical solution] are included in the subsequent inventive step analysis. Non-technical features that do not contribute are excluded; this is the line expressed in the EPO’s Comvik decision T641/00 at headnote 1.

The practical consequence is that patent applicants, and their attorneys, need to ensure that the technical interactions between claim features are clearly identified and properly articulated. For example, a claim that includes a technically significant interaction between an ANN architecture and other system components needs to describe [in the specification] that interaction in a way that makes the real-world effect, as claimed, evident. Getting this right at the drafting stage is significantly easier than attempting to reconstruct the argument later in prosecution, not least because one needs to contend with other procedural objections relating to the possible “added matter.”

Does the decision affect inventive step analysis?

Yes, but not by requiring UK courts to adopt the EPO’s problem-and-solution approach. The Supreme Court was explicit that the Pozzoli test for inventive step remains a legitimate approach in the UK and that there is no requirement to change to the EPO’s preferred problem-and-solution methodology. The court acknowledged that the Aerotel rejection does not require the wholesale adoption of EPO practice, only alignment on the interpretation of Art.52 EPC.

The modification to inventive step analysis is the intermediate step. Again, features that are non-technical but which interact – in the context of the invention as a whole – with the technical subject matter of the claim can support the presence of an inventive step, provided that the totality of the claimed invention is not obvious over the prior art.

For AI applicants, particularly at drafting and then in argument, this means careful thought must be exercised about which features of the invention are being relied upon for inventive step, and whether those features genuinely interact with the technical subject matter of the claim to deliver an effective technical effect.

What should AI applicants do now?

The immediate practical implication for businesses developing AI systems, machine learning tools and other computer-implemented technologies is to reassess UK filing strategy in light of the new legal position.

Applicants with pending UK applications that have encountered exclusion objections under the old Aerotel framework should consider whether those objections can now be overcome with the express inclusion of “any hardware.” Applicants with refused or abandoned applications that were declined primarily on exclusion grounds, rather than novelty or inventive step, may have grounds to revisit their position, although this may require appeal through the courts. The decision and strategy is determined by the precise state of the file, and that may still not be finally closed.

For new filings, the decision creates a stronger basis for framing AI-related patent claims around the technical interactions between system components, the contribution of specific architectural choices to technical character, and the way in which trained model behaviour contributes to a technical effect. Claim drafting that clearly identifies and preserves those technical interactions is likely to be more resilient under the intermediate step analysis.

Hepworth Browne advises clients on UK AI patent strategy following the Emotional Perception decision. The firm’s direct involvement in the litigation means that its advice on claim strategy, prosecution and portfolio review is grounded in the specific arguments and reasoning that shaped the Supreme Court’s ruling. If your business is developing AI or computer-implemented technologies and you need UK patent advice, you can find out more about the firm’s AI patentability services or speak to the team.

Frequently asked questions and Summary of Emotional Perception AI v Comptroller [2026] UKSC 3

Is Aerotel still the law in the UK? No. The Supreme Court has held that the Aerotel approach should not be followed. It has been replaced by the “any hardware” approach endorsed by the EPO’s Enlarged Board of Appeal in G1/19, combined with the intermediate step analysis derived from the principles in TT154/04- Duns Licensing.

Does the ruling mean AI inventions are automatically patentable in the UK? No. It heavily depends on the overall technical effect and how this is expressed. The judgment clearly lowers the exclusion hurdle by adopting “any hardware,” but patentability still depends on novelty, inventive step and the proper identification of features that contribute to the technical character of the invention. Not every AI system or software product will satisfy those requirements, especially if they are effectively the automation of an existing process. However, these issues are not simple and thought is required.

Who were the solicitors and patent attorneys in the Emotional Perception case? Emotional Perception AI was represented by Mark Chacksfield KC and Edmund Eustace as counsel, instructed by Hepworth Browne Ltd (Bath). Bruce Dearling of Hepworth Browne was the instructing patent attorney and the was responsible for the fundamental arguments and legal framework from inception through to the UKSC decision.

Does the ruling affect non-AI software and computer-implemented inventions? Yes. The ruling changes the exclusion analysis for all computer-implemented inventions and, moreover, “all fields of technology” as required by the World Trade Organisation’s TRIPS agreement. Any applicant with software-related claims that were affected by the Aerotel framework may need to review their position.

What happens to the Emotional Perception AI application now? The Supreme Court allowed the appeal, setting aside the Hearing Officer’s decision and remitting the application to the UKIPO for assessment of novelty and inventive step. The question of whether the Emotional Perception invention satisfies those requirements has not yet been determined. In changing the law, it is not unreasonable to suggest that the UKIPO might suffer from administrative inertia and, indeed, some backsliding into the old and now outlawed Aerotel approach albeit presented under another guise. 

For detailed guidance on AI patentability after Emotional Perception, explore Hepworth Browne’s AI and computer-implemented invention practice, read about AI and computer program patents, or contact the firm to discuss a specific application or portfolio.