Patents are granted for any new, non-obvious, and industrially applicable inventions. However, both the UK Patents Act and the European Patent Convention exclude some innovations “as such” from being inventions. These include scientific discoveries, mathematical methods, business methods, programs for computers, and now anything which is abstract and/or non-technical in character.
On 14 July 2026, the UK IPO released much-anticipated statutory guidance on how excluded subject matter should be examined, following February’s Supreme Court judgment in the Emotional Perception AI case. The guidance provided clarity on two key issues.
Excluded “as such”?
The UK Patents Act and European Patent Convention restricts patents only to excluded subject matter “as such”. In other words, an innovation that is not solely within an excluded category might escape the exclusion. However, this depends on the way “as such” is interpreted, and this has long been a source of debate between the UK and the EPO.
As we have previously discussed, the Supreme Court, in Emotional Perception AI, resolved this disagreement in favour of the EPO approach. In the majority of cases, the change in the law is not expected to lead to different ultimate outcomes for patent applicants. However, this is a major change to the procedure by which the UK IPO assesses excluded subject matter, and it may have practical consequences for applications at the edge of excluded subject matter (for example, software innovations which may have a hardware impact).
Under the previous approach, excluded subject matter was determined based on a holistic view of the “actual contribution” of the invention. If the actual contribution extended beyond excluded subject matter, this first barrier was cleared. Then, all a claim’s features (both technical and non-technical, excluded and non-excluded) would be considered for inventive step. However, the law did not require any feature-by-feature analysis of the claim and so whether the “actual contribution” lay solely in excluded subject matter or not could be uncertain.
Under the new approach, the first barrier can be cleared by the inclusion of any technical feature, even if it is not novel. Instead, a holistic view is taken during assessment of inventive step, to determine the “technical character” of the invention. Then, in place of the uncertain assessment of whether the “actual contribution” lies solely in excluded subject matter, a feature-by-feature analysis is carried out. Features that do not contribute to the technical character of the invention (“non-technical features”) are effectively struck out and ignored when assessing inventive step.
For example, a claim to a business method involving a conventional computer is no longer “excluded” but rather “non-inventive”, as the features relating to the business method are ignored and all that is left is a known conventional computer.
The new feature-by-feature analysis should make UK examination more predictable, improving certainty for applicants. As this takes the UK closer to the EPO approach, applicants may also be able to look to UK examination reports in future for an initial, potentially cost-effective indication of European patentability.
What is a computer?
Finally, one of the key issues in Emotional Perception AI was whether an artificial neural network (ANN) is, as such, a program for a computer.
The applicants argued that ANNs could be implemented directly in hardware; for example, as a circuit consisting of discrete electronic components. Therefore, they argued that an ANN was not a computer program “as such”.
However, the Supreme Court found that, even in the case of a hardware implementation, the weights, biases, and network architecture of the ANN are the “program” for that “computer”. Therefore, an ANN as such is a computer program as such.
More generally, the Supreme Court found that “computer” should not be confined to conventional digital computers. However, they did not provide an explicit definition, choosing instead to leave the category open to development as technology changes further.
The new UK IPO guidance explicitly recognises that electronic analogue computers and quantum computers (as well as digital computers and ANNs) are computers.
Whilst it remains to be seen what shape a “program” for an analogue computer might take, and whether the exclusion extends to programs for mechanical computers, this does mean that programs for these computers are excluded “as such”.
This will have immediate consequences for any applicants in the AI or quantum computing fields. However, applicants should remember that computer programs are only excluded “as such”. They may still be patentable if they include technical character; for example, if they have a significant technical effect outside the computer or result in a hardware improvement. This is of particular relevance in nascent fields such as quantum computing, where software remains low-level and strongly tied to hardware architecture.
Conclusions
The guidance produced following Emotional Perception AI should be welcomed by applicants, clarifying the approach to UK examination and bringing it further in-line with that of the EPO. The guidance will be of particular interest to AI and quantum computing innovators, owing to the strong relationship between software and hardware architecture in those fields.
At Boult, we’re excited by the potential that AI holds. Our team’s unique skill set spans many application fields, from cryptography and telecoms, through bioinformatics and genetic genealogy, to scientific instruments, quantum computing and computer hardware.
Read more about the work of our AI team here.
