Software Patents in Europe and the UK
Written from EPC Article 52, T 0641/00 (COMVIK) and Aerotel/Macrossan. Current as of 22 August 2026.
European practice on software is usually described as a flat prohibition, and the article does not say that. Programs for computers are listed among things not regarded as inventions, and then a third paragraph confines the exclusion to applications relating to that subject matter as such. Two words carry the whole thing.
The United Kingdom applied the same exclusions by a different route until February 2026, when its Supreme Court set that route aside and aligned with the EPO reading. Both are below.
Article 52 has three paragraphs and they do different work.
Paragraph 1 grants European patents for inventions in all fields of technology that are new, involve an inventive step, and are susceptible of industrial application.
Paragraph 2 lists what is not regarded as an invention. Programs for computers appear there, in the same clause as "schemes, rules and methods for performing mental acts, playing games or doing business".
Paragraph 3 then limits paragraph 2 to applications relating to that subject matter "as such."
So the exclusion is a shape rather than a subject. Paragraph 2 does not declare software unpatentable; it withholds the label invention, and paragraph 3 confines that withholding to claims directed at the excluded thing as such. Whether a given claim is so directed is the whole question, and it is not answered by the article.
Europe and the UK, Side by Side
| European Patent Office | United Kingdom | |
|---|---|---|
| The exclusion | EPC Article 52(2)(c): "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" are not regarded as inventions | Patents Act 1977 s.1(2)(c): "a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer" is declared not an invention, "among other things" |
| Its limit | Article 52(3): the exclusion applies "only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such" | The declaration "shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent" relates to that thing as such |
| The operative test | Guidelines G-II 3.6: a program must produce a further technical effect, "a technical effect going beyond the" normal physical interactions between the program and the computer, assessed "without reference to the prior art" | Since Emotional Perception AI [2026] UKSC 3 (11 February 2026), alignment with the EPO's reading of Article 52 in G 1/19; "the Aerotel approach should not be followed" |
| Inventive step with mixed features | COMVIK T 0641/00: assessed "by taking account of all those features which contribute to said technical character"; "features making no such contribution cannot support the presence of inventive step" | Not separately read in this cluster |
| Defines "technical" | No: neither the treaty, the guidelines nor COMVIK | No: neither the statute nor Aerotel |
Five sources in this cluster turn on the word technical and none defines it. The exclusions in the two jurisdictions are the same category by category; what differed for two decades was the route to reading them, and that difference closed in February 2026.
The Authorities
What These Pages Do Not Decide
- They do not compare United States and European outcomes for any particular invention.
- They do not tell anyone how to frame or draft a claim for either office. Describing how an analysis works is not the same as drafting toward it.
- They are not a substitute for European or UK counsel, and this site has neither.
Educational, not legal advice, and further from home than anything else on this site.