How much longer can the Aerotel/Macrossan test survive?

Abstract

Despite the attempt of the Court of Appeal in Symbian Ltd v Comptroller General of Patents [2008] EWCA Civ 1066 (‘Symbian’) to reconcile the approaches of the United Kingdom Intellectual Property Office (UK IPO) and the European Patent Office (EPO) to inherent patentability, they are again at odds: while the UK IPO applies the Aerotel/Macrossan test, a recent opinion of the EPO's Enlarged Board of Appeal (G-0003/08) confirmed that for the EPO novelty has no place in such an assessment.