Background to the Fore: AI and Software Patent Eligibility

Software and AI seem destined to both help and harm efforts toward sustainability. In part, AI's role may depend on its patent eligibility. Software faces an uphill battle to qualify for patents. Tension between the Supreme Court's Alice decision (a patent killer) and the increasing prevalence of AI patent applications makes understanding the boundary between patent-eligible and -ineligible subject matter more important than ever. This article reviews the latest guidance from the U.S. Patent Office on the patentability of software, including artificial intelligence. An AI invention can become subject-matter eligible through narrow, “practical” applications that solve problems beyond a desired mathematical result or routine automatization.