Can You Patent AI Software in the UK in 2026? What Has Changed?

The short answer is yes: some AI and software-based inventions can be patented in the United Kingdom. But the important word is some. A patent is not available simply because a product uses artificial intelligence, machine learning or a clever algorithm. The invention still needs to be new, inventive and capable of industrial application, and the features relied upon for inventive step need to contribute to the technical character of the invention.

The position changed significantly on 11 February 2026, when the UK Supreme Court gave judgment in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3. The decision replaced the approach that UK patent examiners and practitioners had used for computer-implemented inventions for about 20 years. The UK Intellectual Property Office (UKIPO) then issued a new Patent Practice Notice on 14 July 2026 explaining how examiners should apply the judgment.

For inventors and early-stage technology businesses, the practical result is encouraging but not as simple as saying that 'software is now patentable'. It has become much easier for a computer-implemented claim to get past the initial excluded-subject-matter hurdle. The difficult question has moved to whether the feature that makes the invention different actually solves a technical problem in a way that can support novelty and inventive step.

The practical headline

Putting an AI or software invention on a computer can now be enough to clear the first UK patent-eligibility hurdle. It is not enough by itself to obtain a patent. The real value still needs to lie in a technical contribution that can support novelty and inventive step.

Why were software and AI patents difficult in the UK?

The Patents Act 1977 excludes a 'program for a computer ... as such' from being treated as an invention. Similar wording appears in Article 52 of the European Patent Convention. That has never meant that every invention involving software is automatically excluded, but historically the UK used a particular legal test derived from the Court of Appeal decision in Aerotel.

For many applicants, the key argument became whether the claimed invention made the required technical contribution. This could make the excluded-subject-matter stage itself a substantial barrier, particularly for inventions in software, data processing, artificial intelligence and machine learning.

What did the Supreme Court change in February 2026?

The Supreme Court held unanimously that the Aerotel approach should no longer be followed. Instead, the United Kingdom should adopt the interpretation of Article 52 developed by the European Patent Office in decisions including Duns and G 1/19.

The first question is now deliberately a low hurdle. If a claim uses technical means - for example a computer, computer hardware, a computer-readable storage medium or another physical technical element - it can qualify as an 'invention' and avoid rejection merely as a computer program 'as such'. The UKIPO's July 2026 practice notice states that examiners should object under section 1(2) only where the claimed invention does not involve any technical means.

That is a substantial procedural and legal change. A normal computer-implemented AI invention will often clear this first hurdle simply because it is implemented using computer hardware.

Does that mean an AI algorithm is now automatically patentable?

No. This is the most important limitation. Clearing the first hurdle only establishes that the claim is eligible to be considered as an invention. The patent office then asks which features actually contribute to the technical character of the invention as a whole. Only those features can normally support novelty and inventive step.

The UKIPO describes this as an 'intermediate step'. Examiners are expected to analyse the claim feature by feature and ask whether each relevant feature contributes to, or interacts with, the technical subject matter so as to provide a technical solution to a technical problem.

A feature can therefore be extremely clever, commercially valuable and mathematically sophisticated, yet still fail to help with inventive step if its contribution is treated as non-technical. This is particularly important for AI systems whose novelty lies mainly in business rules, recommendations, linguistic meaning, user preferences or other cognitive information rather than in a technical result.

What happened to the Emotional Perception AI patent application itself?

The story did not end with the Supreme Court allowing the appeal. The Supreme Court decided that the claims were not excluded merely as a computer program, but sent the application back to the UKIPO so that the remaining stages of the new approach could be applied.

On 1 October 2026 the UKIPO issued a further decision, O/0894/26. The Hearing Officer accepted that the claim passed the first eligibility hurdle, but concluded that producing a 'semantically better' file recommendation was not itself a technical result. The particular AI training objectives relied upon therefore did not contribute to the technical character in the way required to support inventive step. Once those features were left out of the inventive-step assessment, the remaining subject matter was held obvious over common general knowledge and the application was refused.

This is a useful illustration of the new law. Emotional Perception made it easier to get through the front door, but it did not remove the need for a technically inventive contribution.

What kinds of AI inventions are more likely to have a technical contribution?

There is no automatic category that guarantees a patent, and every case depends on its claims and prior art. However, AI used to achieve a technical purpose is generally a stronger starting point than AI whose distinguishing effect is primarily commercial or cognitive.

Examples that may present a stronger technical case include AI controlling machinery or an industrial process; improving the internal operation, efficiency or security of a computer or network; processing technical sensor data; detecting technical faults; controlling energy, communications or manufacturing systems; or analysing images, audio, signals or medical-device data in a way that produces a technical result. The EPO's 2026 Guidelines, which the UKIPO says examiners may find helpful, give examples such as using a neural network in a heart-monitoring apparatus to identify irregular heartbeats and classification of digital images, video, audio or speech based on low-level technical features.

By contrast, an AI system that is different mainly because it recommends content a user may prefer, classifies text by meaning, implements a business decision or automates an administrative rule may find it harder to show that the distinguishing feature contributes to technical character.

Why the way the patent application is written matters

The 2026 changes make drafting particularly important. A patent application should not merely say that AI is used to obtain a better result. It should explain the technical problem, the technical architecture, how data enters and moves through the system, how the model is trained or configured where relevant, what technical effect is achieved, and which implementation details produce that effect.

For an early-stage company, this can also affect the commercial value of the application. An application centred only on a high-level business objective may give little room to argue later that the invention lies in a specific technical implementation. Conversely, an application that identifies the important technical mechanisms and sensible fallback positions can give the applicant more options during examination.

PatProtect works with inventors and early-stage businesses to identify the technical substance of an invention, prepare and file patent applications, and explain where AI or software features may create patentability issues. In this area in particular, an early discussion before public disclosure can be valuable because the legal analysis often depends on details that are easy to overlook when the invention is described only as an app, platform or AI service.

Has UK practice now become the same as the European Patent Office?

It has moved much closer in the way computer-implemented inventions are analysed, because the Supreme Court expressly adopted the interpretation developed in EPO decisions including G 1/19 and Duns. But the systems are not identical. The Supreme Court said that the established UK methodology for inventive step, including the Pozzoli approach, remains available. A UK application and a European patent application may therefore still encounter different examination reasoning even where the underlying concept of technical character is now more closely aligned.

What should an inventor do in 2026?

If the invention uses AI or software, avoid assuming either that 'software cannot be patented' or that the February 2026 decision means 'AI is now patentable'. Both are too broad. The better question is: what is the technical problem, what technical means are used, and which features provide the technical solution that is new and non-obvious?

Where the answer appears promising, the next step is usually to consider prior art and prepare the application so that the technical contribution is described properly before filing. Patent protection should normally be considered before public disclosure, investor demonstrations, crowdfunding, publication or unrestricted release of the product.

Conclusion

The February 2026 Supreme Court judgment is one of the most important UK developments in software patent law for many years. It removes the former Aerotel approach and makes the first patent-eligibility hurdle for computer-implemented inventions considerably easier to clear. But it does not turn every AI system into a patentable invention.

The focus has shifted. For most practical AI and software cases, the key issue is now likely to be whether the features that distinguish the invention contribute to a technical solution to a technical problem and can therefore support novelty and inventive step. The October 2026 UKIPO decision in the Emotional Perception application itself demonstrates how important that second stage can be.

Can software be patented in the UK in 2026?

Yes, some computer-implemented inventions can be patented. The fact that an invention uses software does not by itself prevent patent protection. The claim must still satisfy the normal requirements for patentability, and the inventive features relied upon generally need to contribute to technical character.

Can I patent an AI algorithm in the UK?

Potentially, but simply having an AI or machine-learning algorithm is not enough. A claim involving computer hardware may clear the initial eligibility hurdle, but the features supporting novelty and inventive step need to make the required technical contribution.

What did Emotional Perception AI change?

The Supreme Court held that the long-standing Aerotel approach should no longer be followed. The UK now uses a low 'any hardware' first hurdle, followed by an intermediate assessment of which features contribute to technical character before novelty and inventive step are assessed.

Did Emotional Perception AI win its patent?

Not ultimately at the UKIPO stage following remittal. The Supreme Court allowed the appeal on the excluded-subject-matter issue, but the UKIPO later refused the application in decision O/0894/26 because the features relied upon did not provide the technical contribution needed to support inventive step.

Is AI used in physical products easier to patent than an AI recommendation system?

It can be easier to demonstrate a technical contribution where AI is used to control or improve a technical system, process, device, network or technical data-processing operation. That is not a guarantee of patentability, because novelty and inventive step still have to be established.

Should I describe the AI model in detail in a patent application?

The application should contain enough technical information to support the invention being claimed and any technical effects relied upon. The appropriate level of detail depends on the invention. A patent attorney can help distinguish useful enabling detail from implementation material that does not need to define the invention.

Can PatProtect help with an AI or software patent application?

Yes. PatProtect is focused on inventors and early-stage businesses and can assist with initial patentability discussions, prior-art considerations, patent drafting and UK filing strategy for AI, software and other technology inventions.

Sources and further reading

Law and practice position reviewed to 14 October 2026. URLs are provided in plain text for reference.

UK Supreme Court judgment: Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3:
https://www.supremecourt.uk/cases/judgments/uksc-2024-0131

UK Supreme Court press summary:
https://www.supremecourt.uk/cases/press-summary/uksc-2024-0131

UKIPO Patent Practice Notice: Search and Examination of UK Patent Applications under the Patents Act 1977 (published 14 July 2026):
https://www.gov.uk/government/publications/search-and-examination-of-uk-patent-applications-under-the-patents-act-1977-as-amended/search-and-examination-of-uk-patent-applications-under-the-patents-act-1977-as-amended

UKIPO decision O/0894/26, Emotional Perception AI Ltd, 1 October 2026:
https://www.ipo.gov.uk/patent/p-decisionmaking/p-challenge/p-challenge-decision-results/p-challenge-decision-results-bl?BL_Number=O/0894/26

EPO Guidelines for Examination 2026, Artificial intelligence and machine learning:
https://www.epo.org/en/legal/guidelines-epc/2026/g_ii_3_3_1.html

EPO Guidelines for Examination 2026, claims comprising technical and non-technical features:
https://www.epo.org/en/legal/guidelines-epc/2026/g_vii_5_4.html

Important Notice

This article is provided for general information only. It is not legal advice and should not be relied upon as a statement of how the law will apply to any particular AI, software or computer-implemented invention. The law and UK Intellectual Property Office practice concerning software and AI patentability changed materially in 2026 and remain an area in which the outcome can depend heavily on the precise wording of the claims, the technical problem addressed and the facts of the invention. This article represents a general opinion on the state of United Kingdom law and practice as at 14 October 2026, based on the authorities and guidance identified above. It does not provide a patentability opinion on any particular invention. If protection of a particular AI or software invention is commercially important, specific advice should be obtained from a suitably qualified patent attorney before disclosure or filing decisions are made.