Patenting AI-related inventions: navigating a constantly shifting terrain

On February 11 2026, the UK Supreme Court dramatically changed the landscape for European AI and software patents. In Emotional Perception AI v Comptroller General, the court unanimously overruled the long‑standing Aerotel test and adopted the EPO’s “any hardware” approach. In practical terms, the court held that a computer program can be patented if it involves physical hardware, even if the inventive concept is expressed as software.

The case involved an artificial neural network (ANN) for recommending media with similar emotional content. Whereas the court found that the ANN was “a program for a computer”, it nevertheless held it to be patentable, as it required hardware to run.

In Europe, the European Patent Convention (EPC), drafted in the 1970s, excludes “programs for computers as such” from patentability. Yet courts and offices have long recognised that a computer-implemented invention (CII) is patent-eligible, provided it has a technical quality.

The EPO grants patents for claimed software methods if they produce a “further technical effect” beyond the normal software/hardware interplay and if they are novel and inventive. For example, a program that controls a physical process or improves a computer’s operation can impart technical character. However, the EPO does not grant patents claiming mere calculations or business rules implemented on a generic computer.

In practice, EPO examiners first check if a claim includes any technical means – such as a computer, microprocessor, storage medium, or network. If that is the case, the claim is considered to have technical character and thereby passes the first test of patent eligibility. The technical features do not have to be novel or inventive to pass this first hurdle.

Until February 2026, examiners in the UK applied the Aerotel/Pozzoli framework. While the EPO and UK law both accepted software inventions if framed as solving a technical problem, the tests used to determine that threshold were different. Today, by applying the “any hardware” test, UK law expressly aligns with the EPC.

Next comes an “intermediate step” (from the EPO’s G 1/19), the aim of which is to filter out purely non‑technical aspects before evaluating novelty and inventiveness. In practice, examiners must dissect each claim into features and only consider those that contribute to the invention’s technical character.

Under the EPO’s Comvik principle, only technical features and their technical effects count towards the inventive step. Examiners are expected to split a mixed invention into its technical and non-technical parts, and only improvements to technical fields (speed, memory use, control, simulation fidelity, etc.) can support an inventive step.

As UK examiners have not used this granular feature-by-feature analysis before, initial guidelines will likely evolve. The UK Supreme Court has noted that how to apply the intermediate step in local practice remains an open question. In any event, after this filtering, examiners turn to traditional patentability criteria: novelty, inventive step, and industrial applicability.

A crucial part in the examination of CIIs hinges on the assessment of inventive step. At the EPO, practice centres on the “problem-solution” approach for the examination of inventiveness:

• Identifying the closest prior art;

• Formulating the objective technical problem solved by the claim over the closest prior art; and

• Asking whether the claimed features that solve it would have been obvious to a skilled person.

This approach ignores non-technical aspects such as business rules or abstract data modules.

In the UK, by contrast, the long-established Pozzoli test for inventiveness – which consists of finding the inventive concept and then asking whether it was obvious – remains in the books and was even explicitly endorsed by the Supreme Court. In other words, UK examiners can continue asking “what is the single inventive concept?” and then assessing its obviousness.

While the tests for patent eligibility have now been aligned, this is not the case for the inventive step tests. Indeed, any suitable structured approach may be used in the UK, and the same stands for the EPO, even though the problem-solution approach remains preferred.

In other important courts, such as the Court of Appeal of the Unified Patent Court in Luxembourg, testing for inventive step was clarified in 2025 in the Amgen v Sanofi and Meril v Edwards cases. The test remains, at least in theory, distinct from the EPO’s problem-solution approach. It remains to be seen if the UPC will endorse the patent-eligibility approach that is now largely harmonised between the EPO and the UKIPO.

This perceived liberalisation of software and AI patentability in the UK echoes a broader push to accommodate AI innovation worldwide.

The WIPO Technology Trends: Artificial Intelligence report confirms that AI patenting has surged. In the US, the USPTO has explicitly moved to favour software and AI patents, making it harder for examiners to reject AI applications as “abstract”. In China and elsewhere, offices are also grappling with how to protect inventions such as machine learning models and AI methods without over-excluding them as mere mathematics or data structures. Europe’s scheme – hinging on technical character – remains influential globally, and this UK shift may encourage further harmonisation.

Even as patent offices and courts update their rules, the world of technology is moving at breakneck speed. The WIPO’s Technology on the Move report emphasises that new technologies now spread faster than ever: whereas in the past, inventions took decades to diffuse globally, today they often reach worldwide use within years or even days. This means that the law is perpetually playing catch-up. To remain relevant, patent systems must adapt quicker.

In aligning UK law with modern practice to avoid artificial barriers for software and AI, the UK Supreme Court acknowledges this reality. In the case of AI and software, the trend is clear: the future of innovation demands that patent law evolves faster, lest valuable inventions slip through the cracks.

In this fast-evolving legal landscape, expert guidance is essential. An experienced European patent attorney can ensure your applications align with current practice and withstand doctrinal shifts, turning informed intellectual property strategy into a driver for commercial success.