Is a computer program patentable?

The patentability of computer programs is a complicated area of UK law in which up until this year, mid-2000s case law governed what could and couldn’t be patented in a world of ever-escalating tech reliance. 

However, as of February of this year, a Supreme Court judgement has adjusted the barriers for the approach for obtaining patent protection for a computer program. 

In this blog, we will outline what this change in UK law will mean for those wanting to obtain patent protection for computer-implemented inventions.  

The old UK approach to the patentability of computer programs

In order to qualify for patent protection in the UK, the subject matter of a claim must meet four separate criteria, it must be:

  1. An invention;
  2. Novel;
  3. Inventive; and
  4. Industrially applicable

For this first criteria, UK law outlines various exclusions which cannot be patented because they do not qualify as an invention. One such exclusion being for “a program for a computer” … “as such”. 

However, just because a claim of a patent application includes a “program for a computer” … “as such”, this does not necessarily mean that the subject matter wasn’t patentable. 

The old UK test to determine whether claimed subject matter fell under the exclusion asked whether the inventive concept of the claim was a “program for a computer” … “as such”. If the answer was yes, then the subject matter of the claim was not patentable.  

The catalyst for change

In 2019, a UK patent application was filed seeking protection for a system which uses an artificial neutral network (ANN) to provide file recommendations (music e.g Spotify suggestions) based off a user’s previous interests. 

This application was rejected at the UK Intellectual Property Office on the grounds that the claimed subject matter did not classify as an ‘invention’ as it fell under the exclusions, given that an ANN was a ‘program for a computer’…’as such’. 

Following refusal at UKIPO, the case worked its way up the courts, all of which applied the same test with differing outcomes, up to the Supreme Court decision. 

The new UK approach to the patentability of computer programs

There were two significant outcomes from the Supreme Court decision which will change the way that we approach excluded subject matter towards programs for computers in the UK:

  1. The old UK test has been replaced with a new test, the “any hardware” approach.

The new test essentially brings the UK approach in line with that of the European Patent Office and allows for a claim directed to a computer-implemented invention to avoid exclusion merely by including reference to the use of a computer, a computer-readable storage medium, or other technical means’, earning itself the nickname “any hardware” approach.

This test is generally considered to provide a lower hurdle for subject matter to meet the criteria of being an invention, in comparison to the old UK test. 

However, the subject matter of a claim must still meet the three further criteria for patentability, wherein the inventive step of a computer implemented invention will be assessed based on the features of the invention that contribute to the technical character of the invention as a whole. 

  1. New definitions for a computer, a program for a computer and an ANN.
  • A computer is “a machine which processes information through performing computations”. 
  • A program for a computer is “a set of instructions capable of being followed by a computer (of any kind) – which may or may not have a CPU – to produced desired manipulations of data”.     
  • ANN is ‘an abstract model which takes numerical input, applies a series of mathematical operations (applying weights, biases and an activation function) and outputs a numerical result at successive layers’. 

What does this mean in practice?

  • ANNs are a set of instructions to manipulate data in a particular way to produce a desired result, therefore an ANN is a program for a computer. 
  • However, according to the “any hardware” approach an ANN may qualify as an invention if the claimed subject matter includes any hardware and if that hardware is novel and inventive in its own right.

Conclusions

In conclusion, these changes bring the UK’s approach to the patentability of a computer program more closely in line with the practice of the European Patent Office, without contradicting the leading case on how to assess inventiveness more generally. Although the full impact of these changes are yet to be realised, they coincide with an ever-growing technology landscape and the implications of this approach will undoubtedly make huge waves for commercialisation and IP strategy across the technology sector. To learn more about this judgement, and how patent Examiners are to apply the teachings; the UKIPO as of 14th July 2026 have issued statutory guidance to aid practitioners. 

There are other considerations when it comes to protecting IP in computer implemented inventions, such as, the software from which a computer program runs. Our previous blog post, IP Protection for Software, covers how copyright protection and trade secrets can also be used to provide protection for the written code in the software itself.

If you have any questions, or need advice on the patentability of computer programs; please get in touch with the Bailey Walsh team via phone +44 (0)113 208 9962, or by email at mail@bailey-walsh.com.