Emotional Perception — UKIPO refuses AI patent application again, this time for lack of inventive step

Less than a year after the Supreme Court eased the path for AI and computer-implemented inventions, the UK Intellectual Property Office (UKIPO) has refused the Emotional Perception patent application again. The Hearing Officer found that the claimed “semantically better” output was not a technical result, so the artificial neural network (ANN) training features did not contribute to technical character.

The case concerns a patent application for an AI-powered music recommendation system. It returned to the UKIPO following the Supreme Court's landmark decision earlier this year, which reshaped the approach to assessing the patentability of AI and computer-implemented inventions in the UK and required further consideration of whether the invention involved an inventive step.

Here, Ibraheem Uzbeck and Colin Bell from our intellectual property team explore how the UKIPO applied the Supreme Court’s ‘intermediate step’ in practice and what the decision may mean for the patentability of AI and computer‑implemented inventions in the UK.

UKIPO decision: inventive step refused

On 1 October 2026, following a hearing on 4 August 2026, a UKIPO Hearing Officer refused patent application GB1904713.3 (Emotional Perception AI Ltd) under section 18(3) of the Patents Act 1977. They found that the independent claims lack an inventive step under section 1(1)(b). The refusal can be appealed within 28 days of the decision, which is by 29 October 2026.

How the UKIPO applied the intermediate step to inventive step

The Hearing Officer applied a “two hurdles with intermediate step” approach, combining the G 1/19 intermediate step framework with the Pozzoli test for inventive step. Following the Supreme Court, the claims were not excluded as a program for a computer “as such”.

The intermediate step: is a “semantically better” file a technical result?

The Hearing Officer defined the technical character of the claim as “computer hardware running a program (the ANN) that selects and outputs a file”, acknowledging that this may appear reductive. The determinative question for the Hearing Officer was whether outputting a “semantically better” file is a technical result. He concluded that it is not. 

“Semantic” refers to the subjective, emotional meaning that a human attributes to content, so a “semantically better” file is one that a user perceives as emotionally closer to what they sought. The file was not identified faster — or with less computing power — than in prior art systems. The details of the ANN’s training were therefore treated as not contributing to technical character. The Hearing Officer indicated however that, had this been a technical result, the application would have been inventive over the prior art.

The second hurdle: obvious over common general knowledge 

Once the Hearing Officer had determined that the technical character was to be defined just as “computer hardware running a program (the ANN) that selects and outputs a file”, the remaining features were considered obvious over common general knowledge and no saving amendment was identified. 

The Hearing Officer noted for reassurance that the applicant’s parallel European application (EP3931721) was refused by the EPO examining division for lack of inventive step and then abandoned. However, the Hearing Officer correctly noted that EPO decisions are not binding or persuasive on the UKIPO in any event.

Where matters now stand

The decision is a first-instance decision of the UKIPO and is subject to appeal. Moreover, other applications will be determined on their own facts and merits.

The applicant’s representative has publicly criticised the UKIPO’s latest approach, suggesting that it risks reintroducing the Aerotel contribution analysis that the Supreme Court rejected. 

The central question on any appeal is likely to be whether the intermediate step, as applied here, is consistent with the Supreme Court’s and G 1/19’s treatment of features contributing to technical character and whether the Hearing Officer came to the correct conclusion on the definition of technical character.

In determining the definition of technical character, the Hearing Officer stated that the “key is what the invention actually achieves in the real world. What it achieves is the selection and output of a file”. No doubt, if appealed, it will be argued that the invention technically achieves more than this. It’s not simply the random selection and output of any file but rather the identification of a file which “a human being would give a semantically similar description of their emotional response, but solely by reference to the physical properties of the files”. 

The “trick” of the invention (as described by Sir Anthony Mann, the judge in the High Court, the Court of Appeal and the Supreme Court) is training the ANN to make the distance between file vectors in the property space correspond as closely as possible to the distance between the vectors for the same file in the semantic space. 

An appeal must be lodged within 28 days of the UKIPO decision and could be to the Appointed Person or more likely the High Court. Given the Hearing Officer’s decision, one possible route of appeal is that the Hearing Officer erred in determining that a “semantically better” output was not a technical result.

The position has therefore not been finally determined and further proceedings are possible. 

It’s also noted that the UKIPO’s Manual of Patent Practice is still to be updated following the Supreme Court decision. Although that will not have any impact on this case, it may impact on future application and decisions by the UKIPO.  In any event, the application of the approach will differ from case to case, depending on the specific facts and claims of each patent application.

Commercial implications for AI patent applicants

The Supreme Court’s decision remains significant: the application was not refused as a computer program “as such” and AI inventions that include hardware should now generally clear the first hurdle. The decision illustrates that one of the principal questions is now whether the features said to make the invention inventive contribute to its technical character. 

Where the claimed benefit lies in subjective user perception, such as a recommendation that a listener finds more emotionally suitable, those features may be disregarded. While the decision is specific to its facts and remains open to challenge, applicants should consider identifying and claiming technical effects and what constitutes technical character in the examination process with the UKIPO, such as improved processing efficiency, reduced resource use or adaptations to hardware or data handling and coordinating UK and EPO filing strategy.

Talk to us

If you’re developing AI-driven technology or considering how best to protect AI and computer-implemented inventions, our intellectual property and technology specialists can help. We advise on the protection of inventions and provide wider legal support to technology businesses. 

We’ll continue to follow the Emotional Perception case closely and monitor future AI patent applications to see how the UKIPO’s approach evolves.

To discuss your approach to protecting AI innovation and what the developing UK position may mean for your patent strategy, call 0333 004 4488, email hello@brabners.com or complete our contact form.