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The UK Supreme Court has departed from the longstanding “Aerotel” test on patentability of computer software related inventions. We expect that the decision, although not binding in New Zealand, will have repercussions here.
Background
The Court ruled in Emotional Perception AI Limited v Comptroller General of Patents [2026] UKSC 3, 11 February 2026, that an artificial neural network invention was not excluded from patentability1. The Court rejected the four-step "Aerotel" test applied for 20 years, adopting instead the European Patent Office's "any hardware" approach under which a claim is not excluded if it involves any physical hardware2.
Chapman Tripp comment
The judgment represents a seismic shift. The Aerotel test required:
- construing the claim
- identifying the actual contribution
- asking whether it falls solely within excluded subject matter, and
- checking whether the contribution is technical.
The Supreme Court held this incompatible with the European Patent Convention.
Under the European approach, if a claim involves any hardware—even mundane hardware—it is not excluded. An "intermediate step" then identifies which features contribute to technical character, filtering out non-contributing features before assessing novelty and inventive step.
Action points
Actions to consider arising from this decision may include:
- reviewing any pending AI/software patent applications
- re-filing where possible any applications that were previously refused, and
- closely monitoring IPONZ guidance.
New Zealand
The New Zealand Patents Act 2013 codifies at Section 11 the first three steps of Aerotel, but importantly, not the fourth step relating to the "technical contribution". Section 11(3) states a claim relates to a program "as such" if the actual contribution lies solely in it being a computer program.
While Emotional Perception AI is not binding in New Zealand, it will likely be impactful. The UK Supreme Court’s decision to scrap the Aerotel test suggests that legislative amendment of the NZ Patents Act 2013 may be required.
Separately, in Thaler v Commissioner of Patents [2023] NZHC 554, the High Court held that an AI cannot be an "inventor" under the Patents Act 2013, ruling the term is limited to natural persons. Dr Thaler has appealed this decision, and its outcome may further clarify New Zealand's approach to AI-related patent issues.
Australia
Section 18(1) of the Australian Patents Act 1990 requires an invention to be a "manner of manufacture" within section 6 of the Statute of Monopolies. Unlike New Zealand’s Patents Act 2013, Australia’s Patents Act 1990 neither applies the Aerotel test directly nor expressly excludes computer programs “as such”.
The recent decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 rejected the rigid view that implementation using conventional computer technology can never be a "manner of manufacture". The key question is whether the claimed subject matter, properly characterised, produces an artificial state of affairs and a useful result.
On 5 February 2026 the High Court of Australia in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd ACN 001 660 715 [2026] HCADisp 15 S153/2025 effectively confirmed the position taken in by the Australian Full Federal Court in Aristocrat by refusing the Commissioner of Patents leave to appeal the decision of the Full Court3.
General takeaways
The Emotional Perception AI decision marks a watershed moment. After 20 years, the UK has abandoned Aerotel, significantly lowering the eligibility threshold for AI and computer technologies.
New Zealand stands at a crossroads. Its Patents Act 2013 codifies elements of Aerotel, so any departure may require legislative reform. Australia, applying the "manner of manufacture" test refined in Aristocrat, considers the subject matter of the claim as a whole and whether the claimed invention produces an artificial state of affairs and a useful result.
All three jurisdictions share a common concern: preventing patents for mere abstract ideas while protecting genuine innovations. For innovators in AI and computer technologies, these developments signal a more favourable environment for patent protection across major jurisdictions.
Chapman Tripp Patents can advise on how this landmark decision affects your intellectual property strategy. Reach out to discuss its implications.
