Emotional Perception — how UK AI patents are now being assessed

Earlier this year, we explored the Supreme Court’s landmark decision in Emotional Perception AI Ltd v Comptroller‑General of Patents and how it unlocked new opportunities for patenting AI and computer‑implemented inventions in the UK.

That decision marked a decisive break from the UK’s longstanding Aerotel framework and brought domestic practice into closer alignment with the European Patent Office (EPO). What remained to be seen was how the UK Intellectual Property Office (UKIPO) would apply this new approach in practice.

Here, Paddy Fearnon and Colin Bell look at what has happened since. Drawing on recent examination activity and newly-shared UKIPO material, they explain how AI patent applications are now being assessed and what this means for your innovation and patent strategies.

What the Supreme Court changed on AI patents

Before February 2026, UK patent examiners applied the Aerotel four‑step test to determine whether a computer‑implemented invention was excluded as a “program for a computer”. In practice, this often led to applications being refused at an early stage, before novelty or inventive step were considered.

The Supreme Court rejected that approach. While it confirmed that artificial neural networks (ANNs) fall within the concept of a computer program, it held that Aerotel should no longer be followed. Instead, UK law must apply an approach consistent with (and informed by) EPO case law on technical contribution. 

The Supreme Court addressed the issue of “mixed type inventions” (i.e., a claim with a mix of technical and ‘non-technical’ features), noting that an invention may have (i) technical features which contribute, (ii) technical features which do not contribute (i.e., features which, although they qualify as technical per se, “cannot contribute to inventive activity because they have no technical function within the context of the claimed invention”), (iii) non-technical features which contribute and (iv) non-technical features “as such” which do not contribute to the technical solution of a technical problem. 

In particular, the Supreme Court indicated that the assessment of novelty and inventive step can be based only on the features which contribute to the technical character of the invention (which therefore have to be clearly defined in the claim). These are the features set out in (i) and (iii) above. This leads to an intermediate step in which features covered under (ii) technical features which do not contribute and (iv) non-technical features which do not contribute to the technical solution of a technical problem need to be filtered out for the assessment of novelty and inventive step.

In relation to the Emotional Perception AI patent application, the Supreme Court held that how the correct approach and intermediate step applies to the invention at hand and whether the features of the invention which contribute to its technical character can be considered to involve an inventive step are questions to be considered by the Hearing Officer.

Substantive examination & technical character

The patent application at the centre of the Supreme Court decision (GB2583455) has now returned to the UKIPO for further examination under the revised framework.

While not a final decision on grant, the publicly available register documents are significant. They show that the application is being substantively examined — rather than rejected at the eligibility stage — and that attention has shifted towards identifying which claim features contribute technical character. This marks a clear departure from pre‑February practice, where many AI patent applications failed before reaching full examination.

In relation to the Emotional Perception AI patent application, the UKIPO examiner has raised a concern over the clarity of Claim 1 and then sought to follow the approach set out by the Supreme Court. However, they noted that the Court declined to provide additional guidance regarding the implementation of the intermediate step. The examiner therefore (for the purpose of completeness) considered two different example implementations. 

In relation to both implementations, having determined what remained after the features that do not contribute to the technical character of the invention have been filtered out, the examiner considered that what was left was not novel and/or not inventive over the prior art. 

The UKIPO’s early approach to AI patent examination

Further insights come from examination material shared by the UKIPO. Although not formal guidance, it offers early signals as to how examiners are approaching AI inventions post‑Emotional Perception.

Three themes stand out:

1. Eligibility is no longer the main barrier. Where a claim involves technical means and makes a technical contribution, it’ll generally avoid exclusion as a computer program ‘as such’.
2. Technical contribution now does its work later. The separation of technical and non‑technical features occurs when assessing novelty and inventive step, closely reflecting EPO practice.
3. Drafting and prosecution strategy matter more than ever. Applications that rely solely on improved outcomes, predictions or classifications will struggle unless those outcomes are clearly tied to a technical solution.

The message is not that AI patents are now easy to obtain but that early, blanket refusals should be far less common.

What this means for Emotional Perception AI

Emotional Perception AI has until 27 April to respond to the UKIPO further examination report. Any such response could alter the examiner’s conclusions. Otherwise, the case will be passed to a Hearing Officer to consider. It’s likely that Emotional Perception AI will contest the examiner’s findings and provide arguments of its own, including as to:

1. Whether Claim 1 is clear or not.
2. What constitutes the features of the invention which contribute to its technical character.
3. Whether or not such features are novel and inventive over the prior art. 

Emotional Perception AI could also seek to make amendments to address the deficiencies raised by the examiner.

In addition, even once the Hearing Officer has made its decision, this will also be subject to appeal. As such, the Emotional Perception AI case is set to continue for some time.

What this means for UK AI innovators

For businesses developing AI‑driven technology, the direction of travel is clearer. UK patent applications are more likely to be examined on their merits, making the UK a more attractive jurisdiction for first filings.

However, success will depend on careful drafting and a clear articulation of technical contribution at the inventive step stage.

Where this leaves AI patents in the UK

Early UKIPO practice suggests a genuine move towards substance over form. AI inventions are increasingly assessed on what they technically do, rather than dismissed because of how they’re implemented.

Formal UKIPO guidance is expected in due course, which may further refine examination practice. 

Given the significance of the shift in approach, it’s reasonable to expect that examination findings may be challenged — initially in writing and in some cases, through further hearings.

Talk to us

If you’re developing AI‑driven technology or reviewing your patent strategy in light of these changes, our intellectual property and technology specialists can help. 

Get in touch to discuss whether your innovation may now be patentable in the UK, how to align UK and EPO filings and how best to frame the technical contribution of your invention.

Call 0333 004 4488, email hello@brabners.com or complete our contact form.