UK Supreme Court Rewrites AI Patent Eligibility Test in Emotional Perception Case, February 2026

The UK Supreme Court handed down its judgment in Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3 on 11 February 2026. The Court unanimously allowed the appeal and abolished the Aerotel four-step test that UK courts and the UK Intellectual Property Office (UKIPO) had applied to assess patent eligibility for computer-implemented inventions since 2006. The judgment is final and binding on all UK tribunals and the UKIPO.

Section 1(2)(c) of the Patents Act 1977 excludes from patentability "a program for a computer" as such. The Aerotel test had operationalised this exclusion through a four-step "contribution" analysis that consistently rejected claims where the advance lay in software logic rather than a physical technical effect. The Supreme Court replaced this with a test derived from the European Patent Office's Enlarged Board of Appeal decision G1/19: a claimed invention is eligible if it produces a "technical effect going beyond the normal physical interactions between the program and the computer on which it runs." Courts must now identify each feature of the claim, separate technical from non-technical features, and assess whether the technical features (taken together with technical effects of any non-technical features) satisfy the inventive-step requirement under section 3 of the Patents Act 1977.

The ruling directly affects developers and owners of AI and artificial neural network (ANN) systems seeking UK patent protection. The UKIPO confirmed on 11 February 2026 that it immediately withdrew its AI examination guidelines, which had directed examiners to refuse most ANN-based applications under the Aerotel contribution approach. All pending AI and software patent applications at the UKIPO will now receive substantive examination under the new technical-effect test. Applicants whose claims were previously refused under Aerotel may seek review under the updated approach. The UKIPO committed to updating its Manual of Patent Practice to reflect the judgment.

The Court left open the precise method for integrating the new technical-effect analysis with the Pozzoli inventive-step assessment under section 3. The case was remitted to the UKIPO Hearing Officer for reconsideration of Emotional Perception AI's original application under the new test. Each application will be assessed on its individual technical merits. The judgment does not automatically render any previously refused application allowable; it changes the analytical test, not the burden of proof.

Source: Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3 (11 February 2026); UK Intellectual Property Office, "Examining patent applications relating to artificial intelligence (AI) inventions" (guidance withdrawn 11 February 2026), available at www.gov.uk/government/publications/examining-patent-applications-relating-to-artificial-intelligence-ai-inventions. Confirmed March 12, 2026.

The information provided is not legal, tax, investment, or accounting advice and should not be used as such. It is for discussion purposes only. Seek guidance from your own legal counsel and advisors on any matters. The views presented are those of the author and not any other individual or organization. Some parts of the text may be automatically generated. The author of this material makes no guarantees or warranties about the accuracy or completeness of the information.