UK Supreme Court changes the approach to patentability of Computer Implemented Inventions

In a landmark ruling handed down on 11 February, the UK Supreme Court in [Emotional Perception AI v Comptroller General [2026] UKSC 3] has brought about a shift in the way that the patentability of Computer Implemented Inventions is to be assessed in the UK, but this shift is potentially of greater relevance to patent practitioners than to patent owners. While the decision changes the nature and focus of some of the tests that must be satisfied for a Computer Implemented Invention to be patented, it is not yet clear that it necessarily raises or lowers the overall bar.

The decision moves the UK closer to the EPO in terms of the overall methodology for assessing patentability of Computer Implemented inventions by endorsing the EPO approach to what is typically the first step in this respect: the patent eligible subject matter test. Until now, the UK had applied its own approach to this issue, the "Aerotel" test, that diverged from the EPO's "Comvik" approach. In this decision, the UK Supreme Court has now endorsed the approach in Comvik, particularly in view of the fact that it has been upheld by the EPO's Enlarged Board of Appeal in G1/19. However, while the decision aligns UK practice in respect of this step, it also expressly endorsed the UK approach to inventive step (the "Pozzoli" test), which is distinct from the EPO's "problem/solution" approach. So some significant methodological divergence remains.

An important aspect of this development arises from is the fact that the Comvik approach to the patent eligible subject matter test necessitates considering whether individual features of an invention are technical (or non technical) as part of, or prelude to, the inventive step assessment. In other words, Comvik's patent eligibility test comes with a companion modification to the inventive step enquiry, restricting the latter to focus only on claim features that contribute to technical character. It has been clearly demonstrated in the EPO how this consideration can be stitched into the EPO’s “problem-solution” approach. The question thus arose how the UK Courts, in adopting Comvik, should handle this accompanying inventive step test modification. The Court dismissed arguments that by endorsing G1/19 (and thus, the Comvik approach), it would be necessary to replace the English courts’ established approach to inventive step under Pozzoli with a “problem-solution” style approach, and they overtly endorsed the Pozzoli test. It also discounted arguments that trying to add a Comvik-inspired companion to Pozzoli would create a “Frankenstein monster” of a test. 

Helpfully, some guidance was provided on what the companion to the Pozzoli test should look like, with principles of an "intermediate step" to sit between the patent eligibility enquiry and the obviousness assessment being set out.  Nevertheless, patent practitioners, examiners and English courts will now have to forge new ground in figuring out how to apply these principles and adapt a “technical features only” filter in practice.

Courts have long struggled with the question of how to separate out the test for patent eligibility from tests for novelty and inventive step. With this decision, the UK Supreme Court has overtly sided with the EPO in concluding that it is more appropriate to import an assessment of the “technical” nature of claim features into an inventive step assessment rather than to import "prior art infused" questions of inventiveness into an enquiry into patent eligibility. This aligns the UK and the EPO on the opposite side of the debate to the US which it could be said still includes aspects of obviousness/prior art analysis as part of how the 2-step Mayo/Alice patent eligibility test for Computer Implement Inventions established by the US Supreme Court is dealt with in practice.