International patent families accounted for roughly 9% of generative AI patent publications in 2025. The other 91% is already prior art.

Antoinette Konski of Foley & Lardner LLP published an analysis on August 12 synthesizing WIPO's 2024 generative AI patent landscape report with its July 2026 update. Three observations impact U.S. patent filing strategies.

Three Strategic Observations for AI Patent Filings

The Internationalization Gap Closes as Each Family Ages

WIPO counts international patent families, meaning one invention with applications published in two or more jurisdictions, at 3,297 in 2025, up from 1,931 in 2023. Those families grew about 71% over that span, and total GenAI publications grew faster, which is what holds the share at 9%. WIPO corroborates the intuitive notion that applicants file at home first and add jurisdictions later, so each family is counted as domestic-only before any foreign members publish.

Foreign Filings Become U.S. Prior Art on Two Different Clocks

An application published only in China is prior art under 35 U.S.C. 102(a)(1) as of its publication date, whether or not it is ever enforced here. A PCT application designating the United States, once published, is prior art under 102(a)(2) as of its earliest effective filing date, whether or not it ever enters the national phase. The AIA dropped the condition that publications must be in English to receive this earlier prior art date, so a Chinese-language PCT receives the benefit here. Neither clock requires a U.S. filing.

The Section 101 Asymmetry Is Narrowing at the Office and Holding in the Courts

Chinese, Japanese, and Korean applicants clear eligibility under materially more permissive standards than the U.S. Alice/Mayo framework. Domestically, the August 2025 examiner memorandum and precedential Ex parte Desjardins made allowance easier, but neither binds a district judge, and Recentive Analytics v. Fox, 134 F.4th 1205 (Fed. Cir. 2025), remains the litigated standard. A claim narrowed to overcome a U.S. rejection, then copied into foreign counterparts, forfeits broader scope that may be available abroad.

Agentic AI and the Prior Art Window

Agentic AI is where the prior art appears thinnest. IFI CLAIMS puts agentic filings at 9% of 2025 global AI applications, with worldwide agentic applications up 43% year over year and 59% over two years. WIPO still calls agentic AI nascent. That opening closes on a schedule already set. Applications filed in 2024 and 2025 publish through 2027, and the decision that preserves foreign scope comes due at the twelve-month Paris Convention deadline, six months before the applicant's own filing publishes and before any competitor's filing from the same period has published. The filing calendar runs ahead of available search results.

Sources

  1. Ex parte Desjardins, Appeal No. 2024-000567 (ARP Sept. 26, 2025), designated precedential Nov. 4, 2025: https://www.uspto.gov/sites/default/files/documents/202400567Ex_parte_Desjardins_arp_rehearing_decision.pdf
  2. USPTO, Reminders on Evaluating Subject Matter Eligibility of Claims under 35 U.S.C. 101 (Aug. 4, 2025): https://www.uspto.gov/sites/default/files/documents/memo-101-20250804.pdf
  3. MPEP 2154.01(a), WIPO Published Applications: https://www.uspto.gov/web/offices/pac/mpep/s2154.html
  4. Antoinette F. Konski, Global AI Patent Surge: Trends, Dominance, and Strategy, Foley & Lardner LLP (Aug. 12, 2026): https://www.foley.com/insights/publications/2026/08/global-ai-patent-surge-trends-dominance-and-strategy/
  5. WIPO, Patent Trends Update in GenAI (July 2026): https://www.wipo.int/edocs/pubdocs/en/wipo-pub-1089-3-2026-en-patent-trends-update-in-genai.pdf
  6. WIPO, Patent Landscape Report: Generative Artificial Intelligence (July 2024): https://www.wipo.int/web-publications/patent-landscape-report-generative-artificial-intelligence-genai/assets/62504/Generative%20AI%20-%20PLR%20EN_WEB2.pdf
  7. IFI CLAIMS & IALE, IFI Insights: Inventing AI (July 28, 2026): https://www.ificlaims.com/news/ifi-insights-inventing-ai/
  8. Recentive Analytics, Inc. v. Fox Corp., 134 F.4th 1205 (Fed. Cir. 2025), cert. denied Dec. 8, 2025 (No. 25-505): https://www.cafc.uscourts.gov/opinions-orders/23-2437.OPINION.4-18-2025_2500790.pdf