AI Intellectual Property: Patenting AI Software May Become Easier

I recently blogged about some of the challenges companies face in obtaining patent protection for AI tools.  However, this MoFo Tech Blog post says that a recent internal USPTO memo suggests that obtaining patent protection for AI-related software may become easier. Here’s the intro:

The USPTO has issued an internal memorandum that may make it easier to patent software, in particular AI-related software inventions.

In recent years, the USPTO has found certain software inventions to be patent-ineligible abstract ideas.  In the new internal memorandum, the USPTO has directed patent examiners to exercise greater care before rejecting AI-related software technologies for this reason.  While the memo is styled as a “reminder” of existing policy and law, its emphases and examples send a clear indication that the Office wants to dial back aggressive eligibility rejections, particularly in AI and machine learning domains.

The memo, dated August 4, 2025, came from the desk of USPTO Deputy Commissioner for Patents Charles Kim, and is titled “Reminders on evaluating subject matter eligibility of claims under 35 U.S.C. 101.”  Distributed to examiners in Technology Centers 2100, 2600, and 3600—those art units covering software, computer architecture, communications, and business methods technologies—the memo offers applicant-friendly subject matter eligibility guidance that signals a welcome reprieve to applicants amidst a USPTO eligibility climate that has tightened considerably in recent years.

The internal memo offers applicant-friendly guidance on the “mental processes” limitation on patentability, pointing out that “[c]laim limitations that encompass AI in a way that cannot be practically performed in the human mind do not fall within this grouping.”  It also highlights the distinction between non-patentable claims that “recite” an abstract idea and potentially patentable claims that merely “involve” an abstract idea.  The memo emphasizes that patent claims for AI software must be assessed “as a whole” and that AI claims are eligible for patent protection if they reflect an improvement to technology