Levelling up: Emotional Perception and gaming patents

For years, the gaming industry has faced a challenging route to grant in the UK for video game-related inventions. The technology often involves a combination of mathematical methods, schemes or rules for playing a game, the presentation of information, and perhaps most importantly as far as the prosecution of such applications is concerned, computer programs. This means that applications relating to gaming technology can be particularly vulnerable to objections around excluded subject matter.

We recently discussed the possibility of securing patent protection for video game-related inventions at the European Patent Office (EPO). In this article, we explore the potential impact of the UK Supreme Court’s recent landmark decision in Emotional Perception on patent applications relating to gaming technology in the UK.

First, we review the previous approach for assessing excluded subject matter at the UK IPO with the help of a case study, and then consider how the landscape is changing.

Nvidia’s Application

Nvidia Corporation’s patent application, GB2108909.9, related to using neural networks to generate recommendations for a player of a video game based on accumulated changes of state in the game. The application explained that these tailored recommendations could be used to help players improve their gaming skills, without the need to resort to expensive personal coaches. The application was argued by the applicant to overcome limitations that previous automated approaches had in understanding various game states.

Game states can be based upon relationships between in-game events, such as a player’s position and location on a game map, statistics, and chat messages. These states change over time, and changes in state can impact recommendations to be provided to a player. An example of such a context-dependent game state given in the application was recommendations relating to interactions with an in-game object such as a spider.

An object such as a spider may appear in a game, and current and past state information can be used to determine an appropriate suggestion. Within the context of one game state, the suggestion may be to kill the spider because it is an enemy or might otherwise harm the player, but within the context of another game state, an alternative recommendation is to not kill the spider because it is no longer a danger to the player or may help a player to achieve a particular result or goal.

The application was refused following a hearing (BL O/0599/25) in July 2025 because the subject matter of the invention was deemed to be excluded under the UK Patents Act.

Despite acknowledging that the claimed neural network provided a “better” recommendation to the player and “that the claims are inventive in light of the cited prior art”, the hearing officer applied the Aerotel test and refused the application for relating to excluded subject matter. The hearing officer reasoned that the recommendations were inherently subjective and cognitive in nature, concluding that the contribution related solely to a computer program and a scheme for playing a game.

Emotional Perception: game over for Aerotel

The UK Supreme Court’s decision in Emotional Perception has upended decades of domestic patent law around excluded subject matter or patent eligibility, as explained in our article here.

The Supreme Court determined that the Aerotel approach should no longer be followed. Instead, the Court mandated that the UK must align its interpretation of excluded subject matter with the EPO, specifically adopting the principles endorsed by the EPO’s Enlarged Board of Appeal in G1/19.

Crucially, this includes adopting the EPO’s “any hardware” approach. According to this approach, as long as the claimed invention has a technical feature, such as a computer, a communications network, or a user device, it successfully clears the patent eligibility hurdle and is not excluded as a computer program “as such”.

The claimed invention in Nvidia’s Application was directed to a processor. Therefore, following Emotional Perception this application would not be refused under the patent eligibility provisions. As in Nvidia’s Application, gaming technology inherently relies on hardware, such as consoles, servers, touchscreens, and processors. All such inventions will now easily bypass the initial patent eligibility hurdle and move on up to the next level.

The next level: the “intermediate step”

Following the approach adopted in G1/19, once a “mixed” invention (i.e. one that includes a mix of technical and non-technical features) is over the patent eligibility hurdle, the Supreme Court determined that an “intermediate step” is required to filter out non-technical features before assessing an invention’s novelty and inventive step. However, the Supreme Court declined to provide specific guidance on how this intermediate step should be implemented by the UK IPO or the lower courts.

The UK IPO also has yet to provide guidance on how it will implement this intermediate step, but the latest Examination Report for the Emotional Perception application itself (issued at the end of March following remittal of the application back to the UK IPO) provides some clues.

In this Examination Report, the examiner analyses the application using two “example implementations” of the intermediate step. The first implementation applies the intermediate step before considering the available prior art, and the second implementation applies it after identifying differences over the prior art.

Both implementations ultimately led the examiner to conclude that the claims lacked an inventive step because the technical aspects of the invention were already known in the prior art. However, the way the examiner reached this conclusion was markedly different, and the two implementations used by the examiner in Emotional Perception’s application are not the only possibilities; as discussed in our article, an alternative approach could be for the intermediate step to involve a greater role for the inventive concept of the claim as part of the Pozzoli test for inventive step under UK practice.

While it is not clear whether Nvidia’s Application would have been allowed in the post-Emotional Perception landscape, implementation of this new “intermediate step” should at least lead to inventive step and technical character being considered in a more holistic manner, rather than being treated completely separately as in Nvidia’s Application.

Concluding remarks

It remains to be seen which approach the UK IPO settles on, the form objections relating to technical character will take, and how this will impact the assessment of inventive step in the UK.

However, in the short term, one thing is clear. The adoption of the “any hardware” approach with the relatively low initial patent eligibility hurdle means that applications for video game-related inventions, particularly those incorporating AI and machine learning technology, are now significantly more likely to be searched and substantively examined, as has been confirmed by the UK IPO following the Supreme Court ruling.

This will give applicants a good idea of where their applications stand in relation to the available prior art, which is particularly important for first filings. In addition, identifying relevant prior art will mean that substantive conversations can be had with the Patent Office around patentability, potentially opening the door to the grant of more patents in this area.