UKIPO changes AI patent examination practice following Supreme Court ruling

The UK Intellectual Property Office has issued new examination guidance following the Supreme Court’s landmark ruling on AI-related patentability, setting out how examiners should approach computer-implemented inventions.

The UK Intellectual Property Office (UKIPO) has introduced new guidance for examining patent applications involving computer-implemented inventions following the Supreme Court’s landmark decision in Emotional Perception AI Ltd v. Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3.

Published on July 14, the new practice notice confirms that the Supreme Court’s February ruling has brought about an immediate change in how Section 1 of the Patents Act 1977 is interpreted and applied. The change affects how UK patent applications, particularly those relating to computer-implemented inventions, are searched and examined under Sections 17 and 18 of the Act.

The guidance represents the UKIPO’s first detailed explanation of how examiners are expected to apply the Supreme Court’s new approach in practice.

Aerotel approach abandoned

The Supreme Court unanimously allowed Emotional Perception AI’s appeal in February, ruling that the long-standing Aerotel approach to computer-program exclusions should no longer be followed.

Instead, the Court held that the UK should adopt the interpretation of Article 52 of the European Patent Convention applied by the EPO’s Enlarged Board of Appeal in G 1/19. The UKIPO’s new guidance confirms that examiners must now apply that approach when considering Section 1 of the Patents Act.

The change is particularly significant for AI and software inventions. Under the previous approach, examiners used the four-step Aerotel/Macrossan test to determine whether an invention involving a computer program was excluded from patentability.

The new guidance expressly tells examiners not to apply the Aerotel approach and not to follow the existing Manual of Patent Practice guidance covering Sections 1.07 to 1.51.7. Where an applicant has previously received an excluded-matter objection under the Aerotel test, examiners are instructed to reconsider the patentability requirements afresh under the Supreme Court’s new approach.

Three-step approach

The UKIPO guidance sets out a new three-step approach for assessing computer-implemented inventions.

The first hurdle is the “any hardware” approach. An examiner must determine whether the claimed subject matter qualifies as an invention by considering whether it has technical character.

The second is an intermediate step, under which the examiner identifies the features of the claim that contribute to the technical character of the invention when viewed as a whole.

The third hurdle concerns novelty and inventive step. At this stage, only features that contribute to the invention’s technical character are considered when assessing whether the invention is new and inventive in relation to the prior art.

The UKIPO says the intermediate stage requires a feature-by-feature analysis. The claimed subject matter must be broken down into its component features and the contribution made by each feature to the technical character of the invention must then be considered.

Importantly, whether an individual feature is “technical” or “non-technical” when viewed in isolation is not the decisive question. The relevant issue is whether that feature contributes to the technical character of the invention considered as a whole.

Implications for AI inventions

The guidance could have significant implications for businesses seeking protection for AI, machine-learning and software-based technologies.

The Supreme Court held in Emotional Perception AI that an artificial neural network (ANN) is a “program for a computer,” but that the presence of a computer or other hardware means an invention is not excluded from patentability merely because it involves a computer program.

The Court also confirmed that an ANN is an abstract entity capable of being implemented on different forms of hardware, rather than being hardware itself. Computer programs generated through machine learning remain computer programs, regardless of whether their instructions were generated by a human or by machine learning.

The practical effect is therefore not that AI inventions are automatically patentable. Instead, the focus of examination has shifted.

An invention may now clear the initial excluded-subject-matter hurdle but still fail at the intermediate or inventive-step stages if its relevant features do not make the required technical contribution.

Reconsidering existing applications

The change could also affect applications already under examination.

The UKIPO has specifically instructed examiners to take care where an applicant has previously received an objection based on the Aerotel approach. If the applicant responds to that objection, the examiner must reconsider the patentability requirements afresh using the Emotional Perception judgment and the new practice guidance.

The development therefore extends beyond future AI patent filings. Applicants with pending computer-implemented inventions may need to consider whether previous objections should now be revisited in light of the changed examination framework.

The UKIPO’s guidance marks a significant practical step following the Supreme Court’s decision and provides applicants and patent attorneys with the first detailed roadmap for navigating the UK’s new approach to AI and software patentability.

The Supreme Court’s ruling changed the legal framework. The UKIPO’s July guidance now begins to show how that framework will operate at the examination stage.

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