UK Supreme Court aligns UK software patentability with EPO approach
The UK Supreme Court’s Emotional Perception decision moves UK practice closer to the EPO for computer implemented inventions, including AI. Claims with ordinary hardware will usually avoid the “computer program as such” exclusion, but only technical features can support inventive step. In practice, applicants should focus arguments and evidence on technical contribution and inventive step.
Key takeaways
- UK moves closer to EPO, inventive step becomes the main battleground.
- Ordinary hardware avoids exclusion, but may not support inventiveness.
- Only technical features count at inventive step, not business aims.
- Neural networks are treated as software, no special treatment either way.
- Draft around technical contribution, measurable effects, and system level impact.
UK Supreme Court decision, what changed
The UK Supreme Court has in effect brought the UK approach into closer alignment with that taken at the EPO, providing greater doctrinal consistency for applicants in Europe.
The previous UK Aerotel approach to assessing the computer program exclusion is to be abandoned; and replaced with relevant parts of the EPO’s approach as set out in the G1/19 decision of the EPO’s Enlarged Board of Appeal.
Going forwards in the UK, any hardware in a claim, even if entirely commonplace, will generally be sufficient to avoid exclusion from patentability as a computer program as such. However, like at the EPO, only features contributing to the technical character of the invention are to be taken into account when assessing inventive step. In practice, this shifts the focus from eligibility to the inventive step analysis, similar to the EPO’s longstanding COMVIK approach.
The Supreme Court referred the present case back to the UKIPO’s Hearing Officer, to allow the UKIPO to iron out the details of this inventive step test in the UK, accounting for the revised approach to excluded matter arising from this judgment, while maintaining the UK’s established Pozzoli approach to inventive step.
The Supreme Court has also confirmed that an artificial neural network (ANN) constitutes a “program for a computer” – i.e. an ANN is to be treated no differently to other software when examining excluded matter.
For further details on the judgment and a summary of the case, see here.
What applicants should do now
Checklist for drafting and prosecution:
• State the technical problem in system terms, treating user or business terms only as context or constraints.
• Describe the technical mechanism, data flow, and implementation constraints clearly.
• Tie benefits to measurable technical effects - e.g., processing efficiency, latency, accuracy, resource use.
• Keep claim features aligned to the technical contribution you will argue.
• Prepare inventive step arguments that separate technical from non-technical features, anticipating that non-technical features “as such” may be disregarded.
Staying current with Patent Copilot
At Solve Intelligence, our Patent Copilot is designed to help you stay on top of legal updates like this Supreme Court ruling. The Patent Copilot provides comprehensive, integrated access to the EPO Guidelines for Examination and the EPO Case Law of the Boards of Appeal; with similar integration with the UK Manual of Patent Practice to be added shortly.
The integration of these legal texts with our AI provides users with instant, contextual access to authoritative European patent law guidance when working with Solve Intelligence's Patent Copilot. Our dedicated team of European patent attorneys ensures this resource is continuously updated to reflect the latest developments.
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This article provides a general overview and does not constitute legal advice. Readers should consult qualified professionals before acting on any of the information presented.
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