New ‘Technical Character’ Guidance Formalised by UKIPO Practice Note

The UK Intellectual Property Office (UKIPO) has now released formal guidance for examining UK patent applications directed to software and AI inventions. The practice note comes almost six months since the landmark Emotional Perception [2026] UKSC 3 ruling which harmonised the UK’s assessment of “technical character” for mixed-type inventions (i.e. inventions comprising a mixture of technical and non-technical features) with the approach of the European Patent Office (EPO).

For those who have been following the Emotional Perception saga closely, the guidance confirms that the almost 20-year-old Aerotel test has been discarded. While the departure from Aerotel is a significant shift for UK patent law, this guidance primarily serves to codify, for UKIPO examiners, the practice we have been navigating since February.

Leaving Aerotel behind has been received as a generally popular move with UK representatives and applicants. Before the Supreme Court decision, some software and AI innovators were discouraged from patenting their inventions due to the UKIPO’s practice of refusing to search patent applications under the Aerotel approach, causing many to choose the EPO-route instead where they could be more confident of a prior art search.

The guidance explains how the European-style “any hardware” and “intermediate step” approach laid out in G1/19 has now been integrated into a three-step test in examination at the UKIPO. How exactly the three steps are followed is still taking shape as examiners grow more familiar with the new approach.

The three steps of the approach are expressed in the guidance as:

(i) the “first hurdle” – decide whether the subject matter of the claim qualifies as an invention, by applying the “any hardware” approach;

(ii) the “intermediate step” – identify the features of the claim which contribute to the technical character of the invention, viewed as a whole; and

(iii) the “second hurdle” – assess whether the invention is new, then whether it involves an inventive step in relation to the prior art by considering only those features which do so contribute to technical character.

Simply referring to a computer, a computer readable storage medium or other technical means is enough to overcome the first hurdle. The second hurdle might use existing approaches already used by the UKIPO, such as the Pozzoli test. For example, the Pozzoli test for inventive step includes a step of determining the inventive concept of the invention. The inventive concept could be used to identify the technical character of the invention, viewed as a whole. Therefore, the inventive concept can be used in the intermediate step as well as the second hurdle.

Encouragingly, in this guidance note, the UKIPO make clear that where inventions have previously been objected to under Aerotel, that patentability should be reconsidered “afresh”. However, the extent to which this can actually change the eventual fate of a patent application in terms of reaching allowance is yet to be seen.

The prior art search section of the guidance is brief. This is perhaps surprising given that the impact the new approach will have on searching practice at the UKIPO, but it does emphasise that UK search examiners should ensure that their search covers features contributing to the technical character of the claimed invention.

Although AI and software inventions still face patentability challenges with the three-step approach, the latest guidance undeniably empowers applicants to argue their case. The increased likelihood of obtaining a search report citing prior art provides applicants with the opportunity to put forward substantive inventive step arguments during examination and also helps applicants to improve their understanding of the prior art landscape before making the investment to file subsequent applications in other jurisdictions.

The UKIPO will hold a hearing on 4 August 2026 to discuss the Emotional Perception patent application under the new approach. As the UKIPO starts to work within this new framework, we can hope to expect a more predictable and transparent path for protecting software and AI innovations in the UK.

This article was prepared by Patent Attorney Jess Davis and Partner Oliver Pooley.