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September 4, 2026

What are software and AI patents?

The short answer

Yes, software and AI can be patented, but only when claims are tied to a specific technical improvement, such as a novel model architecture or data processing method, rather than an abstract idea running on a generic computer. The same standard applies to physical AI and robotics: claims must describe a concrete technical mechanism, not the general goal of "a robot that does X.

Key facts
  • In Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), cert. denied 24 April 2023, the US Federal Circuit and Supreme Court settled that an inventor must be a natural person under the Patent Act; the UK Supreme Court reached the same conclusion in Thaler v Comptroller-General [2023] UKSC 49 on 20 December 2023, and the EPO's Technical Board of Appeal rejected the same DABUS applications separately. Source: AI Law Wiki: Thaler v. Vidal.
  • Following Thaler, the USPTO issued its first formal AI-assisted inventorship guidance on 13 February 2024, later revised on 28 November 2025, confirming that inventions developed with substantial AI assistance can still be patented as long as a natural person made a significant contribution to conception. Source: USPTO: Inventorship Guidance for AI-Assisted Inventions.
  • US software eligibility runs on the two-step Alice/Mayo framework from Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014): claims first can't be directed to an abstract idea, and if they are, must add an "inventive concept" transforming them into something more than the abstract idea itself. Source: Cornell Law: Alice Corp. v. CLS Bank.
  • The EPO excludes "programs for computers... as such" from patentability under Article 52(2)-(3) EPC, but a computer-implemented invention with genuine technical character, solving a technical problem with technical means, remains patentable despite that exclusion. Source: EPO: Computer-Implemented Inventions.
  • The legal test that decides whether software is patentable

    Software eligibility comes down to a specific legal test, not a general vibe about whether an idea seems clever. In the US, the Alice/Mayo framework asks two questions: is the claim directed to an abstract idea, and if so, does it add enough of an inventive technical concept to transform it into something patent-eligible? Europe frames the same underlying concern differently, excluding "computer programs as such" under Article 52 EPC while still allowing computer-implemented inventions that solve a genuine technical problem with technical means. Both tests point at the same distinction: a specific technical mechanism is patentable, the general goal the software achieves usually isn't.

    AI patents, and why "using AI to do X" isn't enough

    AI patents face the same Alice/Mayo and Article 52 tests as any other software, with an added wrinkle: claims need to describe a specific architectural, training or technical improvement to a model or system, not the general application of known machine learning techniques to a new problem. A patent covering "a model that predicts Y using AI" reads as an abstract idea regardless of how novel the business application is; a patent covering a specific technical improvement to how that prediction is computed, faster training, a novel architecture, a concrete accuracy gain through a defined mechanism, has something to anchor eligibility to. This holds for physical AI and robotics too: the same standard applies to a novel sensor fusion method or control algorithm as to a purely software-based model, since embodiment in hardware doesn't change the underlying eligibility test.

    Can AI be the inventor? Settled law, worldwide

    This question is no longer open. The US Federal Circuit, the UK Supreme Court, and the EPO's Technical Board of Appeal have each independently rejected AI inventorship, in the same set of DABUS test cases filed by Dr. Stephen Thaler, ruling that an inventor must be a natural person. What remains genuinely unsettled, and actively developing, is the narrower question of how much human contribution is enough when AI substantially assists an invention. The USPTO's answer, first issued in February 2024 and revised in November 2025, is that a human who makes a significant contribution to conception can still be named inventor even with heavy AI assistance, but the bar for what counts as "significant" continues to be refined.

    What most people get wrong

    The most common mistake is drafting claims around the outcome software achieves rather than the technical mechanism that achieves it, an app that displays information differently, a website that personalises content, a model that predicts something useful, none of these survive examination without a specific technical improvement underneath the description. A second, increasingly common mistake is assuming heavy AI involvement in the invention process itself creates an inventorship problem; it doesn't, as long as a human meets the conception-contribution bar, but the guidance on where that bar sits has shifted twice in under two years and is worth checking against the current standard rather than an outdated summary.

    How Lightbringer handles this

    Lightbringer's attorneys draft software and AI claims around the specific technical mechanism from the start, the part of the invention that actually survives Alice/Mayo and Article 52 scrutiny, rather than describing the general capability first and trying to retrofit eligibility later. For AI-assisted inventions specifically, the human contribution gets documented clearly during disclosure, keeping inventorship aligned with current USPTO guidance rather than a version of the rule that's already been revised.

    Related Lightbringer guide: Software & AI patents guide · Physical AI patents guide

    External sources: USPTO: Subject matter eligibility (35 U.S.C. 101) guidance · EPO: Computer-implemented inventions · USPTO: Artificial intelligence initiatives

    Frequently asked questions

    Can software be patented?

    Yes, but software must be tied to a specific technical improvement, such as a novel way of processing data or improving computer performance, rather than an abstract idea implemented on a generic computer. This distinction is the central challenge in software patent applications and the most common reason they're rejected.

    How to patent software

    Patenting software requires drafting claims around a specific technical mechanism or improvement, not just the end result the software achieves, since claims that read as an abstract idea (US) or a computer program "as such" (Europe) face rejection under current eligibility standards. A patent attorney experienced in software claims is particularly valuable here, given how frequently these rejections occur.

    Can you patent software, or is it always rejected?

    Software isn't always rejected, but it faces a higher bar than most other invention types, since claims need to demonstrate a genuine technical improvement rather than an abstract process running on a computer. Well-drafted software patents that anchor claims to specific technical mechanisms are granted regularly.

    What are some software patent examples?

    Granted software patents commonly cover specific technical improvements like novel data compression methods, unique ways of processing sensor data, or improved algorithms for a defined technical task like image recognition speed. Patents covering a generic "app that does X" without a specific technical mechanism are the ones most likely to be rejected.

    Can I patent code directly?

    No, the literal source code you write is protected automatically by copyright, not patent; a patent instead protects the underlying novel technical process or method the code implements. The two protections work together: copyright stops someone copying your code, a patent stops someone implementing the same process in different code.

    What are AI patents?

    AI patents protect specific, novel technical methods for training or applying machine learning models, such as a new model architecture or a technical improvement to accuracy or efficiency. The general concept of "using AI to do X" without a specific technical mechanism is unlikely to survive examination.

    What does patenting AI actually involve?

    Patenting AI involves the same core requirements as any software patent, but claims typically need to describe specific architectural, training, or technical improvements to a model or system, rather than the general application of known machine learning techniques. This makes claim drafting for AI inventions particularly demanding.

    Can a machine learning patent cover a model itself?

    A specific, novel technical method for training or applying a machine learning model can be patented, but the general mathematical concept underlying a model type typically cannot. Claims need to describe a concrete technical improvement, such as faster training or improved accuracy through a specific mechanism.

    Can AI invent a patent, or be listed as an inventor?

    No, patent offices and courts worldwide, including the USPTO, EPO and UK courts in the DABUS cases, require a natural person to be named as inventor, and an invention generated entirely by AI without significant human contribution can't be patented. This remains an actively developing area of law as AI-assisted invention becomes more common.

    What is a SaaS patent?

    A SaaS patent protects a specific novel technical method underlying a software-as-a-service product, such as a unique data processing or system architecture innovation, rather than the business model of delivering software over the internet itself. The same eligibility standards that apply to software generally apply here.

    Can I patent an app? (Patent for app)

    An app's underlying technical method can potentially be patented if it solves a specific technical problem, while the visual design of its interface may separately qualify for design patent protection. An app that simply displays existing information in a new arrangement, without a technical mechanism behind it, is unlikely to be patentable on its own.

    Can I patent a website?

    Patenting a website itself is rare; what's typically patentable is a specific novel technical process the website implements, such as a unique method of processing transactions or personalising content, not the website's visual layout or general functionality. Purely presentational or business-method aspects face significant eligibility challenges everywhere, under Section 101 in the US and the "as such" exclusions in Europe.

    What is physical AI, and can it be patented?

    Physical AI refers to AI systems that perceive and act in the physical world, such as robots and autonomous machines, and specific technical implementations of physical AI, like novel sensing, control or decision-making methods, can be patented under the same standards as other AI inventions. This is an emerging and fast-growing patent category as robotics and embodied AI development accelerates.

    What are physical AI patents specifically covering right now, and what are physical intelligence patents?

    Current physical AI patent activity, sometimes referred to as physical intelligence patents, concentrates on novel sensor fusion methods, control algorithms for physical manipulation, and techniques for translating perception into physical action. As with all software and AI patents, claims need to describe a specific technical mechanism rather than the general goal of "AI that acts in the physical world."

    What is physical AI intellectual property strategy for a startup?

    Startups in physical AI should prioritise patenting the specific technical mechanisms that differentiate their system, such as unique control or perception methods, while considering trade secret protection for implementation details that don't need public disclosure. Given how fast this field is moving, filing priority applications early to lock in priority dates is particularly important.

    What is a robotics patent, and how do I patent robotics invention?

    A robotics patent protects a specific novel mechanical, control, or perception system used in a robot, rather than the general concept of robotics itself. Claims typically focus on a particular technical mechanism, such as a novel actuator design or a specific control algorithm.

    How to patent a robot

    Patenting a robot generally means identifying and claiming its specific novel elements, whether mechanical design, control software, or sensor systems, since "a robot that does X" alone is too broad and abstract to be patentable. A thorough invention disclosure describing exactly what's technically new is the essential first step.

    What is an autonomous systems patent?

    An autonomous systems patent protects specific technical methods enabling a system to sense its environment, make decisions and act without continuous human control, such as novel navigation or decision-making algorithms. These patents span consumer, industrial and defense applications and face the same eligibility standards as other AI and robotics inventions.

    What is an embodied AI patent?

    An embodied AI patent protects specific technical implementations of AI systems that interact physically with the real world, distinct from purely software-based AI. As with other physical AI patents, claims need to describe a concrete technical mechanism rather than the broad concept of embodiment itself.

    What is robotics IP strategy?

    Robotics IP strategy typically combines patents on core mechanical and control innovations with trade secret protection for manufacturing know-how that doesn't need public disclosure. Given the pace of robotics development, many companies file priority applications early and refine claims as the technology matures.

    What is an industrial robot patent?

    Yes, specific novel mechanisms, control systems or manufacturing processes used in industrial robots are patentable under standard utility patent requirements. Broad claims covering "a robot for manufacturing" without a specific technical innovation are unlikely to be granted.

    What is a humanoid robot patent?

    Specific novel technical elements of a humanoid robot, such as a particular balance control system, actuator design or perception method, can be patented, though the general concept of a humanoid robot itself cannot. As with other robotics patents, claim strength depends on how specifically the technical innovation is described.

    What is patenting hardware AI?

    Patenting hardware AI typically involves protecting specific chip architectures, sensor systems or physical components designed to run AI workloads efficiently, distinct from patenting the AI models or software that run on that hardware. Hardware and software AI innovations are often protected through separate, complementary patent filings.

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