Getting emotional about patenting computer related inventions

The UK Patents Act and the European Patent Convention deny patent protection to (among other things) computer programs by saying that they are not inventions. However, this exclusion applies only to the extent that a patent or application for a patent relates to a computer program “as such”. Where an invention has a “technical character”, it can be patented even if it involves a computer program and minimal hardware.

In the UK, the approach to assessing what constituted an invention has been driven by a 2006 decision, “Aerotel”, that differed significantly from the European Patent Office (EPO) approach (last expressed in a 2021 decision, G1/19 “Simulations”).

For some time, the effect of this difference has been a perception that computer program-related inventions tend to be more difficult to patent in the UK than in the EPO.

On 11^th February 2026, the UK Supreme Court issued a judgment “Emotional Perception” overturning the Aerotel case and aligning the UK (in large part) to the EPO approach.

The Supreme Court found that an artificial neural network (ANN) was a computer program (some might raise an eyebrow at this), but as hardware was involved in the use of an ANN, it could not automatically be found “not an invention”.

Further, the Supreme Court found that the Aerotel approach used in the UK was unsound. They accordingly adopted (in part) some aspects of the EPO approach to determining whether the protection being sought is for an invention.

However, the Supreme Court decided that it could not adopt G1/19 wholesale, saying “… it is open to the UKIPO and to the UK courts to adopt any appropriate method of identifying the technical character of the invention, viewed as a whole…”.

The effect of the decision is that inventions on the edge of patentability may become easier to protect in the UK. “Easier” does not imply “easy”; any concept which would struggle to meet the test via the EPO approach is likely to face similar problems before the UKIPO. However, until there is clarity as to what methods the UKIPO and UK courts will adopt for determining technical character, there will remain uncertainty at the edge of patentability.

While all the patent attorneys at Greenwoods deal with computer program-related inventions, if your invention is particularly “edgy”, Arthur Boff has much experience in pushing things to the right side of the edge.