Deconstructing Emotional Perception and the Death of Aerotel
For two decades, the United Kingdom’s approach to software patentability was defined by an almost exclusionary scepticism. The ‘computer program as such’ exclusion under Section 1(2)(c) of the Patents Act 1977 acted as a gatekeeper, often barring innovations that were deemed too digital to possess technical character.[1] However, on February 11, 2026, the Supreme Court issued its landmark judgment in Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3.[2] By dismantling the long-standing Aerotel test and adopting the any hardware approach, the Court has not only synchronized UK law with the European Patent Office (EPO) but has fundamentally lowered the threshold for AI patent eligibility in the United Kingdom.[3]
Why Aerotel failed AI
To understand the significance of Emotional Perception, one must examine the failure of the Aerotel test in the context of modern computation.[4] Established in 2006, this four-step test required examiners to identify the technical contribution of an invention early in the application process. If the contribution was deemed to be solely a computer program, it was rejected. For two decades, the technical contribution requirement acted as a substantive bar to patentability by conflating the Section 1(2) exclusion with the Section 1(1) inventive step. In the context of Artificial Neural Networks (ANNs), which is a type of AI modelled on biological neurons that learns to identify patterns in data, created an analytical impasse: the courts struggled to classify learned weights and biases within the binary of ‘software’ versus ‘hardware.’ The Supreme Court bypassed this friction by refocusing on physical implementation. Lord Briggs and Lord Leggatt clarified that if an ANN is deployed via a physical computer, it possesses a technical character, thereby shifting the scrutiny from the nature of the instructions to the functionality of the system.
The Any Hardware Doctrine
The Court’s adoption of the ‘Any Hardware’ approach represents a victory for legal realism. The UKSC held that the presence of any technical means is sufficient to grant a claim technical character. This renders the Section 1(2) exclusion a ‘very low hurdle.’
Critically, this aligns the UK directly with Article 52 of the European Patent Convention[5] and the ‘Comvik’ approach used in Munich.[6] By ensuring that the invention stage is a distinct and prior inquiry from the inventive step stage, the Court has removed the conflation that previously allowed examiners to reject software before even searching the prior art. This clarifies that the UK has moved to a bifurcated system.For the UK’s post-Brexit AI Superpower ambitions, this provides a necessary incentive, ensuring UK patents are not more difficult to obtain than their European counterparts. These objectives are evidenced by the 2021 National AI Strategy and the UK’s leadership in hosting Global AI Safety Summits, both of which aim to position the country as a primary hub for international investment. By streamlining the patent process, the UK avoids a "brain drain" of deep-tech startups.
The Intermediate Step Analysis
This is a mandatory filter where examiners strip away "non-technical" features before assessing if the invention is actually new or inventive. It must be noted that a lower threshold at the gate does not guarantee a patent at the end. The UKSC introduced and the UKIPO has since integrated the Intermediate. Step into its February 2026 guidelines.[7] This mandatory filter requires examiners to identify which features contribute to the technical solution of a technical problem.
In Emotional Perception, the AI’s output of music recommendations based on emotional similarity occupied a precarious legal space.[8] If an innovation’s only unique feature is a subjective or cognitive outcome, for example, a recommendation that a human perceives as sad or happy, it is filtered out as non-technical. In legal terms, while the hardware makes it an invention, the output may not be technical enough to deserve a patent. This prevents patents from being granted for purely aesthetic or psychological discoveries that happen to use a computer.
Policy Implications
The broader policy implication is the risk of patent thickets. By lowering the eligibility bar to include any software running on a computer, the UKIPO may be flooded with marginal patents such as inventions that offer only trivial, incremental improvements to existing AI models but mention a computer to gain eligibility. While this benefits large tech firms looking to clutter the field, it poses a significant threat to smaller developers. The ease of clearing the invention hurdle might lead to an era of defensive patenting, where the cost of clearing the way for new startups becomes prohibitive. Furthermore, the Supreme Court’s insistence on respecting EPO decisions, specifically G 1/19, signals a retreat from judicial exceptionalism.[9]
Conclusion
Emotional Perception marks the definitive end of the Aerotel era. By killing the technical contribution requirement at the exclusion stage, the Supreme Court has brought the UK back into the international fold. Yet, the victory for AI developers may be Pyrrhic. While the hardware hurdle has been lowered, the mountain of proving an inventive step using only technical features has grown considerably steeper. By killing the Aerotel test, the Supreme Court has simplified the entry requirements for AI inventions, but it has simultaneously intensified the scrutiny applied to the technical character of their underlying contributions.
References
[1] Patents Act 1977, s 1(2)(c).
[2] Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3.
[3] Ibid [45].
[4] Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371, [2007] RPC 7.
[5] Convention on the Grant of European Patents (European Patent Convention, as revised) art 52.
[6] Case T 641/00 Two identities/COMVIK [2003] OJ EPO 352 (TBA).
[7] Intellectual Property Office, ‘Guidelines for Examining Patent Applications Relating to Artificial Intelligence (AI) Inventions’ (GOV.UK, 11 February 2026).
[8] Emotional Perception (n 2) [82].
[9] Case G 1/19 Pedestrian simulation/CONNOR [2021] OJ EPO A77 (EBA).
Bibliography
Primary Sources
Table of Cases
Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371, [2007] RPC 7
Emotional Perception AI Ltd v Comptroller-General of Patents [2026] UKSC 3
Pozzoli SpA v BDH Pharma Ltd [2007] EWCA Civ 588, [2007] FSR 37
Case G 1/19 Pedestrian simulation/CONNOR [2021] OJ EPO A77 (EBA)
Case T 641/00 Two identities/COMVIK [2003] OJ EPO 352 (TBA)
Table of Statutes and Treaties
Convention on the Grant of European Patents (European Patent Convention, as revised) (adopted 5 October 1973, entered into force 5 October 1977)
Patents Act 1977
Secondary Sources
Intellectual Property Office, ‘Guidelines for Examining Patent Applications Relating to Artificial Intelligence (AI) Inventions’ (GOV.UK, 11 February 2026) https://www.gov.uk/guidance/examining-patent-applications-relating-to-artificial-intelligence-ai-inventions accessed 2 March 2026
Image Credits
Markus Winkler on Unsplash <https://unsplash.com/photos/white-and-black-typewriter-with-white-printer-paper-tGBXiHcPKrM>
