UK Supreme Court endorses EPO’s approach to computer-implemented inventions and discards Aerotel

The Supreme Court’s decision in the Emotional Perception case has now been issued. While the case concerns whether an invention involving an artificial neural network can be patented, the Supreme Court’s decision will have a wide-ranging effect on the UK’s approach to all computer-implemented inventions.

In their decision, the Court affirmed that an artificial neural network is a computer program, and should be subject to the same considerations as other inventions involving computer programs.

Significantly, however, the Court also decided that the UK’s long-standing approach to assessing whether computer-implemented inventions are excluded from patentability, the Aerotel test, should no longer be used. The UK will instead align with the ‘any hardware’ approach followed by the European Patent Office (EPO) and set out in G 1/19, whereby a claim can avoid the exclusion simply by including any hardware element.

Importantly, while this initial hurdle is usually easy to overcome, it is not the final step in the analysis. Similarly to the EPO’s approach, once the ‘any hardware’ test has been met there is an ‘intermediate step’ of determining which features of the invention contribute its technical character. In the subsequent inventive step analysis, only the claim features contributing to the technical character of the invention can contribute to inventive step. However, a significant question left open by the decision is exactly how this inventive step analysis should be performed, given the different approaches the UK and the EPO take to inventive step.

By aligning the UK more closely with the approach of the EPO, this decision should hopefully lead to it becoming easier to patent computer-implemented inventions in the UK. In particular, the UK Intellectual Property Office (IPO) has tended to apply the Aerotel test in a very restrictive way, leading to the rejection of inventions by the IPO that would be expected to be allowed by the EPO. Following this decision, we hope that the IPO will take a more favourable approach to the protection of computer-implemented inventions than it has to date.

For further information you can read our previous article on this case HERE.

Contact one of our Tom Burt or Alex Crick if you are interested in seeking patent protection for a computer-implemented invention, in the UK, Europe or elsewhere in the world.