Can You Patent AI Software in 2026? A Guide to Patent Eligibility
If you’re building AI or SaaS products, you’ve likely asked: Is this patentable? The answer is nuanced. Under 35 U.S.C. §101, software-related claims are often challenged as “abstract ideas.” Applications that simply describe organizing information or applying a model to data frequently face eligibility hurdles. By contrast, claims that describe a specific technical arrangement addressing a computing problem may, in some circumstances, be treated differently.
This post outlines considerations—not guarantees—that can help founders prepare for a productive conversation with counsel.
This article is provided for general informational purposes only and does not constitute legal advice. Reading or relying on this content does not create an attorney–client relationship. Patent law is fact-specific and subject to change; you should consult a qualified attorney for advice regarding your particular situation.
Understanding §101 Analysis
The USPTO and courts generally apply two steps:
Is the claim directed to an abstract idea? Examples include data analysis or business processes without technical detail.
If so, does the claim integrate that idea into a practical application? Claims that recite a non-conventional technical solution to a computing problem may be viewed differently.
No approach ensures allowance. These principles simply reflect patterns observed in USPTO guidance and case law.
Examples of How Technical Detail Can Matter
Drawing from USPTO subject matter eligibility examples, here are illustrative ways claims have been framed to show a technical focus:
Network Security: Detecting anomalies in network traffic and applying defined steps to mitigate threats.
Efficiency Improvements: Reducing training time or memory use through a particular sequence or arrangement of components.
Structured Data Handling: Processing streaming data with techniques like windowing or aggregation under resource constraints.
UI Architecture: Using event routing or selective updates to reduce rendering load and improve system performance.
These examples are not templates. Whether they apply depends on the facts and evolving law.
Common Pitfalls
One of the most frequent issues in software-related patent applications is relying on high-level, result-oriented language without explaining the underlying technical mechanisms. Claims that simply state goals such as “optimize recommendations” or “detect anomalies” tend to be viewed as abstract ideas. Similarly, references to generic computing environments—like “on a server” or “in the cloud”—without describing a specific, non-conventional arrangement often fail to demonstrate a technical improvement. Another common mistake is focusing solely on the presentation of information, such as charts or dashboards, without detailing the processes or structures that enable those outputs. Avoiding these pitfalls starts with framing the invention in terms of concrete steps, components, and constraints rather than broad functional outcomes.
Examples of Helpful Disclosure Categories
When preparing to discuss a software-related invention, it can be useful to think about broad categories of technical detail that often support clarity in a patent application. These are not requirements, and relevance depends on the facts of each case, but they can serve as starting points:
Performance Bottlenecks: Issues such as speed, memory use, bandwidth, energy consumption, or accuracy under certain conditions.
System Components and Data Flows: Major elements of the system and how they interact—processing modules, storage layers, communication paths.
Operational Constraints: Limits or thresholds the system is designed to meet, such as timing, resource ceilings, or capacity ranges.
Comparative Observations: Differences observed before and after implementing the approach, such as changes in efficiency or resource usage.
Operating Environment: Hardware platforms, deployment settings, or compatibility considerations.
Error Handling or Degradation Behavior: How the system responds when conditions change or failures occur.
In addition to written descriptions, flowcharts showing process steps and schematics illustrating overall system architecture often make the disclosure clearer and more complete.
Evidence That Can Support the Record
Applicants sometimes include:
Benchmarks that connect observed improvements to the claimed arrangement.
System architecture diagrams showing how components interact to achieve the technical effect.
Why this can be helpful:
While these materials do not guarantee any particular outcome, they often strengthen the application by:
Clarifying the technical narrative: Evidence helps explain how the invention operates and what makes it more than an abstract idea.
Supporting enablement and written description: Detailed visuals and metrics demonstrate that the disclosure teaches how to make and use the invention.
Framing technical improvement: Showing concrete resource constraints or performance gains can help indicate that the claims address a computing problem, which is relevant to USPTO’s “practical application” analysis under §101.
Demonstrating non-mental steps: Flowcharts and architecture diagrams can help show that the claimed invention involves operations that cannot reasonably be performed in the human mind, which is a key consideration in subject matter eligibility analysis.
Improving communication with examiners: Diagrams and quantitative data make complex systems easier to understand during eligibility review.
Common Questions
If I use an open-source model, can anything still be patentable?
Novelty often lies in orchestration and constraints rather than the base model. Plenty of inventions use off-the-shelf components; that, in and of itself, is not a reason why a patent can or cannot issue. If you’ve created something novel and non-obvious, you may be able to get a patent.
Do I need to include source code?
Not necessarily. Algorithmic steps, component interactions, and parameterized constraints often provide sufficient technical detail. It’s best to ask your attorney what they need. More often than not, flowcharts are more than enough.
Are design patents relevant to software?
Sometimes. GUI design patents protect visual appearance and can complement utility filings.
Should I start with a provisional or a non-provisional?
Both paths are used. A provisional can secure a date while details evolve; a non-provisional initiates examination sooner. The better choice depends on timing and disclosure readiness.