Does AI Actually Invent Anything and Can It Be Patented?
In this article Stuart Southall, Partner at KANGS discusses recent court decisions both in the UK and US on the issue of whether intellectual property rights can apply to Artificial Intelligence (AI).
In February 2026 the Supreme Court handed down its Judgment in Emotional Perception AI Limited-v-Comptroller of Patents, Designs and Trade Marks [2026] UKSC 3 (on appeal from the Court of Appeal [2024] EWCA Civ 825).
Artificial Intelligence (AI) is “big” in the news. Whatever your thoughts on it, AI appears to be here to stay. There are many schools of thought that suggest that the greater the push for AI, the greater the harm and risk to the creative industries there is.
There have been claims that second hand bookstores around the world are being ‘emptied’ by corporations buying books for digitisation and then “fed” into a system to train Large Language Models (LLMs). Apparently, this is to enable the advancement of the LLM and make it better for humanity.
Whether this is actually the case is a different story. What is often overlooked, however, are the creatives and rights holders. Whilst they may have consented to their works being published and sold (and re-sold), did they give consent for their works to be consumed and “spat out” by an LLM?
The reality is “probably not”.
This does raise the question as to “originality” and “creativity” of LLMs. Arguably, if the LLM is only able to provide information because it was able to utilise a published book, has that LLM:
- created something new (arguably),
- is it original works (arguably not), and
- is that work worthy of protection.
The law relating to various arms of Intellectual Property in the UK, (as it is one of the few pieces of legislation that covers the entirety of the United Kingdom), is old. This includes Patents (Patents Act 1977), Trade Marks (Trade Marks Act 1994), Copyright (Copyright, Designs and Patents Act 1988), Design Rights (Design Right (Semiconductor Topographies) Regulations 1989, etc) among others. When this legislation was drafted, it is unlikely that LLMs, whether in their current format or at all, were conceived.
Thaler-v-Comptroller of Patents, Designs and Trade Marks
One of the key elements of the legislation (in the UK) is that they involve humans. Whilst recognised legal entities can own and exploit the Intellectual Property Rights (IPR), nearly everything protectable stems from a human.
Despite this, there have been a few attempts to patent “AI or computer generated” processes. The Supreme Court already ruled in Thaler-v-Comptroller of Patents, Designs and Trade Marks. That outcome was sensible given the clear obligations set down by s1 Patent Act 1977.
It is not only AI generated works that are suggested as being capable of being protected under some form of IP legislation. In 2018, a macaque monkey brought a claim for copyright protection (the claim being commenced by PETA) against David Slater, a British Wildlife photographer in the US.
The matter was referred to the US Court of Appeals for the 9th Circuit (16-15469). Unsurprisingly, the US Court of Appeals found that a macaque monkey could not claim copyright protection. If a macaque monkey cannot claim copyright, why should AI?
When it received the appeal in Emotional Perception AI Limited-v-Comptroller of Patents, Designs and Trade Marks [2026] UKSC 3, the (UK) Supreme Court looked at whether AI, or what was loosely described as “AI”, using an “Artificial Neural Network” could patent anything.
It decided that it could not. However, the UK Supreme Court did reach a few decisions that were unexpected, in that it:
- Decided that the UJK Courts should no longer apply the “four-step” test from Aerotel-v-Telco1 (that test being: (i) Properly construe the claim, (ii) identify the actual contribution, (iii) ask whether the contribution falls squarely within excluded subject matter and (iv) check whether the contribution is technical in nature,
- As a result of moving away from the “four-step test”, the UK Courts should align with the European Patent Office Enlarged Board decision of G1/192, which means that it is now necessary to consider whether something is an “invention” separately from novelty and inventive step,
- As a result of moving away from the “four-step test”, the UK Courts should align with the European Patent Office Enlarged Board decision of G1/192, which means that it is now necessary to consider whether something is an “invention” separately from novelty and inventive step,
- It rejected the proposal that ANNs are fundamentally different from computer programmes as it is effectively a set of instructions that causes hardware to process data in a particular way and therefore falls within the category of “Computer Program” under Article 52(ii) EPC,
- The claimed invention was not a computer program (because they had technical means including hardware, databases, communications and user devices). In applying an approach similar to the European Patent Office Enlarged Board, it gives rise to enough of a technical character to qualify as an “invention” enabling computer programs to be excluded,
- That the Patent should not have been rejected at the threshold stage at the UKIPO.
In real terms, the Supreme Court did not decide whether Emotional Perception’s “invention” was patentable, it merely set the original UKIPO decision aside.
The real outcome of this decision was the fact that the UK should be more aligned with Europe on these matters, and the fact that an invention was made by AI should not be a barrier to that invention achieving patent protection.
Does this mean that AI “inventions” will be able to achieve patent protection? Until the narrative of s1 of the Patents Act 1977 changes, it is unlikely that this will be the case, at least in the UK.
How Can We Assist?
The team at KANGS is highly experienced in handling Intellectual Property disputes of every nature and will be pleased to provide you with immediate and professional assistance and support.
If we can be of assistance, please do not hesitate to contact our team using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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