UK Supreme Court Replaces Aerotel AI Patent Test, Remits Emotional Perception Case, February 11, 2026

On February 11, 2026, the UK Supreme Court (UKSC) handed down judgment in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3, allowing the appeal of Emotional Perception AI Ltd. The Court, constituted by Lords Briggs, Hamblen, Leggatt, Stephens, and Kitchin, set aside the Hearing Officer's refusal of Emotional Perception's patent application and formally abandoned the four-step Aerotel test used by UK courts since 2006 to assess whether computer-implemented inventions fall within the subject-matter exclusions in Article 52 of the European Patent Convention (EPC). The case was on appeal from the Court of Appeal's decision at [2024] EWCA Civ 825.

The controlling provision is Article 52(2)-(3) EPC, as implemented by section 1(2) of the Patents Act 1977. The Court held that the Aerotel approach — which required courts to identify the "technical contribution" of the claimed invention compared to the prior art — had diverged from the EPO's approach in Enlarged Board of Appeal decision G1/19 (the "any hardware" approach). Under G1/19's framework, a claimed invention physically implemented on hardware — including a software-implemented artificial neural network (ANN) — is not excluded as a "program for a computer" solely because it runs on conventional digital hardware. Eligibility is assessed at a threshold stage by asking whether the claim, as a whole, has a technical character; the analysis of whether that character is novel and inventive is deferred to the inventive-step stage using the EPO's Comvik methodology.

For AI-related patent applicants before the UK Intellectual Property Office (UKIPO), the Aerotel four-step screening test no longer applies. AI system claims implemented on any hardware — including ANNs, machine-learning models embedded in conventional computers, and dedicated inference chips — clear the Article 52 eligibility hurdle more readily under the G1/19 approach. The assessment of whether the AI-specific contribution is inventive moves primarily to the novelty and inventive-step stage. Applicants who received adverse decisions under the Aerotel test may have grounds to seek reconsideration or appeal.

The Court declined to apply the new test to the specific claims before it, because neither party had made submissions on how G1/19's intermediate step should be conducted on these facts. The Hearing Officer must now re-examine Emotional Perception's claims under the G1/19 approach. The Court also explicitly reserved for future decision the question whether replacing Aerotel requires any departure from the UK's established Pozzoli/Actavis v ICOS inventive-step methodology.

Source: Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3, [2026] WLR(D) 95 (11 Feb. 2026), https://www.bailii.org/uk/cases/UKSC/2026/3.html. Currency confirmed via BAILII UKSC 2026 index, https://www.bailii.org/uk/cases/UKSC/2026/ (listing current as of March 3, 2026). Confirmed: March 3, 2026.