Consider what happened last year when the Federal Circuit delivered its decision in Recentive Analytics, Inc. vs. Fox Corp. The ruling embodied a decidedly cautious judicial perspective, establishing that merely deploying AI to carry out an abstract concept falls short of what patent law requires. Yet even as the courts applied the brakes, the USPTO was pressing the accelerator, embracing a markedly more receptive approach toward AI inventions. This forward-leaning position has manifested in new directives specifically designed to reduce the excessive use of Section 101 rejections that have long frustrated innovators in this space.
This philosophical divide creates genuine uncertainty for companies investing heavily in AI development. The solution appears to be on the horizon: industry observers anticipate that the USPTO will issue comprehensive new guidance during 2026, addressing two particularly thorny issues that have plagued applicants for years.
The first concerns the burden of proof itself. When a patent examiner dismisses an AI technique as merely an «established method,» the question of who must substantiate that claim remains frustratingly unclear. The forthcoming rules are expected to establish concrete evidentiary standards, replacing the current regime of subjective judgments with objective criteria that both examiners and applicants can rely upon.
The second area involves leveraging the specification’s descriptive power. The new guidance should illuminate how the detailed written description of an invention can demonstrate a «practical application,» providing that crucial «something more» that elevates an abstract concept into something tangible and protectable under patent law.
In sort:
Previously, the USPTO often rejected AI patents as «just math.» Now, to stay globally competitive, they are easing these restrictions and ordering staff to stop reflexive rejections. Expect even clearer, developer-friendly rules in 2026 as a win for tech companies, as it makes AI software easier to protect and increases its market value.
