UK Supreme Court adopts EPO approach to assessment of computer-implemented invention

In an important judgment yesterday (11 February) the UK Supreme Court confirmed that UK courts should apply the European Patent Office (EPO) approach when assessing patentability of computer-implemented inventions such as those involving artificial neural networks (ANNs). The judgment [2026] UKSC 3 rejected some of the reasoning of the Court of Appeal in its decision [2024] EWCA Civ 825.

This means interpreting UK Section 1(2)(c) consistently with the EPO’s interpretation of Article 52(2)(c) and (3) of the European Patent Convention, and applying the approach of the European Patent Office’s Enlarged Board of Appeal decision G1/19. Under the EPO test, the subject matter of a patent claim is not excluded from patentability as a “computer program” if it embodies or involves the use of any hardware.

The Aerotel approach has been scrapped

The Supreme Court concluded that the patentability test set out in previous UK case law (Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371) can no longer be followed, in view of the EPO Enlarged Board of Appeal stating that the UK approach was incompatible with the European Patent Convention which Section 1(2) of the UK Patents Act was intended to introduce into UK law and to have the same effect.

Following the EPO’s approach set out in G1/19, a case led by UK firm Venner Shipley LLP and followed consistently at the EPO since 2022, the UK Supreme Court has now concluded that a system and method using an ANN to efficiently recommend media files to a user (e.g. recommending a music track, video or text file) is an invention and not excluded from patent protection under Section 1(2)(c) of the UK Patents Act. In the claimed invention which involved an ANN, the recommendations of media files are based on physical characteristics of the files (e.g. timbre, tone, speed of a music track) that are calculated to cause a similar emotional response in the user. Because the ANN can only be implemented on some form of computer hardware, it is not merely an excluded “computer program as such”.

The case will now be remitted back to the UKIPO to assess what the EPO Enlarged Board of Appeal referred to as an “intermediate step” between eligibility and determining whether it qualifies as novel and inventive. This intermediate step determines whether a claim includes features that contribute to the technical character of the invention when viewed as a whole, before assessing inventive step with reference to those contributing features. The UKIPO and UK Courts will now seek to identify the technical character of each invention, without necessarily limiting themselves to the European Patent Office’s problem-solution approach.

Simon Wright, President of CIPA, said: ‘CIPA is grateful to the Court for a judgment that moves us significantly closer to consistency between the approaches of the UK and European Patent Offices when assessing patentability of ANNs and other computer-related inventions. This removes a potential problem for industry, as a lack of harmonisation with different approaches and outcomes might otherwise have led to unhelpful validity question marks over some patents obtained via the European Patent Office, as well as disappointing outcomes for UK industry when first-filing patent applications for computer-implemented inventions at the UKIPO. CIPA was especially pleased by the Court’s acknowledgement of the helpfulness of recommendations that CIPA prepared and submitted jointly with IP Federation.

‘We will be analysing the judgment in detail and working closely with the UK Intellectual Property Office (UKIPO) and IP Federation to help to ensure that any consequent changes to the UKIPO’s patenting guidance and Manual of Patent Practice reflect the guidance from the Court and the needs of innovators.’

For anyone wanting guidance on the new judgment, we recommend contacting a UK Chartered Patent Attorney.

Date published: 12 February 2026