On remittal, the UK Office refuses Emotional Perception's neural network for lack of inventive step, because a recommendation that is only subjectively better is not a technical result

2026-10-01UK

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Emotional Perception AI Ltd, Application No. GB1904713.3, Decision of the Hearing Officer (Stephen Brown), BL O/0894/26 (Intellectual Property Office, 1 October 2026), on remittal from Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2026] UKSC 3 (11 February 2026)

After the Supreme Court sent the application back for the Office to apply its new approach, aligned with the EPO's G 1/19, the Hearing Officer heard it on 4 August 2026 and refused it under section 18(3) of the Patents Act 1977 for lack of inventive step. He identified the technical character of the claims as computer hardware running a program that selects and outputs a "semantically better" file, and read "semantically" from the description to mean subjective human meaning, especially perceived emotion. He found the file "'better' only in a subjective psychological sense" and noted that it "was not found faster, nor using less computing power than would be done in prior art systems" (para 53). The training objectives that the applicant argued closed the "semantic gap" were therefore ineligible differences, and what remained, hardware running a program that outputs a file, was obvious over common general knowledge (paras 55 and 56). He also said that if a semantically better file were a technical result, he was "confident" the application would be inventive over the prior art (paras 42 and 43). The period to appeal ran 28 days from the decision (para 60).

What it changesThe case came down to one characterization, and the decision makes that plain (paras 42, 43 and 55): treat the result as technical and the application would be inventive; treat it as subjective and the training details drop out of the inventive step analysis. As I read the decision, it is on firm ground under the European approach, and the EPO examining division reached the same result on the parallel European application, though Lewis Silkin's commentary criticizes it for not working through the training features one by one. In my view an appeal would face a description that, as the decision reads it, says human judgment "trumps" measured properties. For a machine learning recommendation or search application that will be filed in the United Kingdom or at the EPO, my advice is that the description carry the technical effect from the day it is filed, such as fewer computations or faster retrieval, because the hearing officer read "better" in the claim through what the description said it meant. When reviewing a draft description for such an application, consider whether it says anything an examiner could treat as technical, or only that users will like the result.

More on Eligibility of software and AI claims · Prior art, public disclosure and obviousness

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

This is general information about a published decision, agency guidance or piece of legislation. It is not legal advice and does not create an attorney-client relationship. Items concerning offices outside the United States are reported for information only and are not counsel on the law of those countries.