A must-read if you're tracking where AI patents are headed in 2026—especially as the USPTO pivots toward embracing AI innovation rather than gatekeeping it.
Robert Ward of Greenberg Traurig, LLP delivers a sharp AI Patent Outlook for 2026 in The National Law Review, spotlighting Director John A. Squires' leadership in reshaping §101 eligibility for AI inventions. Recent guidance and decisions suggest §101 is no longer being positioned as a blunt gatekeeping tool for AI, with the emphasis now on claims that demonstrate genuine technical improvements, backed by robust specifications. This approach reinforces that AI claims can integrate abstract ideas into practical applications, with technical improvements as key evidence of eligibility. This shift not only makes prosecution more predictable but also bolsters U.S. leadership in AI by avoiding categorical exclusions that could stifle breakthroughs in machine learning and beyond.
Key Policy Changes Include:
- The Kim Memo (August 2025), which curbs "mental process" rejections by recognizing that complex AI algorithms often exceed human mental capabilities, urging examiners to weigh eligibility more favorably.
- Ex parte Desjardins (September 2025), an Appeal Review Panel opinion co-authored by Director Squires, which vacated a rejection on machine learning claims and stressed improvements to AI models themselves—warning that overusing §101 risks "jeopardizing America's leadership in this critical emerging technology."
- Subject Matter Eligibility Declarations (SMEDs), introduced in December 2025 as a Rule 132 strategy, allowing applicants to submit expert evidence of technological advancements, potentially accelerating approvals for AI-driven inventions.
- Forthcoming MPEP updates that reinforce Enfish precedents, clarifying how AI enhancements to computer functionality qualify as eligible subject matter.
These developments implicate broader AI issues: They could spur a surge in patent filings for AI applications in fields like quantum computing and diagnostics, encouraging and rewarding more innovation in the U.S. However, success hinges on precise legal drafting—raising questions about accessibility for startups versus big tech. For under-resourced innovators, partnering with seasoned patent counsel can help ensure your company is positioned to benefit from these advancements in AI patent policy—feel free to connect for tailored advice.