Software Patents After Alice
58% of software patents get approved. 88.6% of Section 101 appeals fail. The difference is how you describe your invention.
In 2014, the Supreme Court decided Alice Corp. v. CLS Bank International and changed the test for software patent eligibility. A decade of Federal Circuit case law has clarified what survives. This guide covers what gets approved, how attorneys navigate prosecution, and what developers should document before filing.
Last updated: February 2026. This page is informational only and not legal advice. Consult a patent attorney for your specific situation.
The Test
The Alice decision created a two-step filter for patent eligibility under 35 U.S.C. Section 101.
If you could describe your invention as "doing [familiar thing] but on a computer," it is probably directed to an abstract idea. Intermediated settlement, organizing data, filtering content, calculating a price. These are abstract ideas.
If NO → Patent eligible. Stop here.
If the claim is directed to an abstract idea, does it include an "inventive concept" that transforms it? This means more than running the idea on a generic computer. The claim must show a specific technical improvement or an unconventional arrangement of components.
If YES → Patent eligible.
The Numbers
Software patents get through at lower rates than mechanical patents. But the approval rate is far from zero.
What Survives Alice
These Federal Circuit cases established categories of software patents that survive the Alice test.
| Case | Year | What It Was | Why It Survived |
|---|---|---|---|
| Enfish v. Microsoft | 2016 | Self-referential database | Improved how the computer itself stored and retrieved data |
| McRO v. Bandai | 2016 | Automated lip-sync rules | Replaced subjective human judgment with specific, rule-based automation |
| BASCOM v. AT&T | 2016 | Internet content filter | Unconventional arrangement of known components at a specific network location |
| Finjan v. Blue Coat | 2018 | Behavior-based virus scan | New technical approach: analyzing code behavior rather than matching signatures |
| Core Wireless v. LG | 2018 | Small-screen UI improvement | Solved a specific technical problem (limited screen size) with a specific solution |
| Berkheimer v. HP | 2018 | Document processing | Shifted burden: examiner must prove with evidence that elements are conventional |
The Pattern
- Improves the computer itself, not just uses it (Enfish)
- Replaces human judgment with a specific technical rule (McRO)
- Unconventional arrangement of components producing new capability (BASCOM)
Component Count Matters
Claims combining components from different technical areas survive at different rates.
What Fails Alice
| Case | Year | What It Was | Why It Failed |
|---|---|---|---|
| Alice v. CLS Bank | 2014 | Intermediated settlement | Business method on generic computer. No improvement to computer functionality. |
| Electric Power Group | 2016 | Power grid data collection | Collecting and analyzing information is abstract. No unconventional approach. |
| IV v. Symantec | 2016 | Email filtering | Organizing data into categories is a fundamental practice. |
| American Axle | 2020 | Vibration attenuation | Applied a law of nature without specifying how. Too abstract. |
| Recentive Analytics v. Fox | 2025 | ML-based scheduling | Applied conventional ML to new data domain without improving ML itself. |
2025 Warning: AI/ML Patents
Recentive Analytics v. Fox Corp. (Federal Circuit, April 2025) is the first major ruling on ML patent eligibility. The court held that applying known machine learning to scheduling data was abstract. "We used AI to do X" is not patentable. "We designed a specific architecture that solves [technical problem] by [unconventional approach]" might be.
The Failure Pattern
- Automates a known human process on a generic computer (Alice)
- Applies a formula or algorithm without connecting it to a specific technical problem (American Axle)
- Uses established technology on new data without improving the technology (Recentive Analytics)
How Attorneys Navigate It
Frame the Technical Problem
The single most important prosecution strategy. Frame the invention around a technical problem, not a business outcome.
| Abstract Problem (Fails) | Technical Problem (Survives) |
|---|---|
| "Faster checkout process" | "Database queries timeout when cart table exceeds 1M rows under concurrent load" |
| "Better recommendations" | "Cold-start latency exceeds 500ms because collaborative filtering requires minimum interaction history" |
| "Improved scheduling" | "O(n2) scheduling algorithm fails above 10K events because pairwise constraint checking exhausts memory" |
| "Smarter data organization" | "Cross-table joins require full table scans without the proposed index structure, consuming 40% of database capacity" |
Layered Claim Strategy
Write claims at multiple levels of abstraction. Each level serves a different purpose.
Independent Claim
Technical improvement without implementation details. Captures competitors who solve the same problem differently.
Dependent Claim
Adds the general technique. Narrows scope but covers variations.
Specific Claim
Exact implementation. Fallback if broader claims face prior art.
Hardware Integration Language
How you describe software-hardware interaction affects Alice survival.
| Software-Only (Risky) | Hardware-Anchored (Stronger) |
|---|---|
| "A method for classifying data" | "A system comprising a processor and memory storing instructions that, when executed, classify sensor data received from an imaging device" |
| "An algorithm that optimizes" | "An apparatus comprising a network interface controller configured to optimize packet routing based on real-time congestion measurements" |
| "Outputting results on a device" | "Rendering a diagnostic visualization on a display coupled to an imaging sensor, mapping spatial coordinates to detected anomalies" |
Specification Depth Matters
The more technical detail in the specification, the harder it is to characterize as abstract. Detail also strengthens Section 112 (enablement), which reinforces Section 101.
| Detail Level | Alice Risk | Section 112 Risk |
|---|---|---|
| Minimal (1-2 pages) | HIGH | HIGH |
| Moderate (5-10 pages) | MEDIUM | MEDIUM |
| Comprehensive (20-30 pages) | LOW | LOW |
What Developers Should Document
Every item below maps to an Alice defense strategy. Document these before meeting your patent attorney.
| Document This | Why It Matters for Alice | Example |
|---|---|---|
| Specific technical problem | Anchors Step 1 away from abstract idea | "Sequential searches cause memory fragmentation, degrading retrieval by 40%" |
| Prior approaches + limitations | Establishes context, supports non-obviousness | "Existing caching caches credentials, not verification results" |
| Hardware interaction | Provides physical anchor for claims | "Receives raw pixel data from CMOS sensor. Renders on calibrated display." |
| Performance benchmarks | Proves technical improvement at Step 2 | "P99 latency: 180ms before, 2ms after. Memory: 4.2GB to 890MB." |
| Why not mentally feasible | Defeats "mental process" categorization | "Classifying 10M packets/sec using 47-dimensional vectors" |
| Architecture choices | Shows non-obvious design decisions | "B-tree with bloom filter over hash table because collisions degrade linearly above 1M" |
| Alternatives considered | Broadens written description | "Evaluated LRU cache (cold-start problem), round-robin (ignores load variance)" |
What Weakens Your Position
| Avoid This | Why It Hurts | Document Instead |
|---|---|---|
| Business outcomes only | "Improved revenue" is not a technical improvement | Pair business benefit with technical mechanism |
| Generic computer language | "Using a computer to process data" = abstract | Name specific components and their functions |
| Unsupported broad claims | "Applicable to all industries" without examples | Describe 2-3 concrete embodiments |
| Implementation without problem | "We built X" misses problem framing | Lead with the technical limitation you overcame |
Pre-Filing Checklist
Use these 10 items before meeting your patent attorney.
Is Your Patent at Risk?
Frequently Asked Questions
Are software patents dead after Alice?
No. Software allowance rates are approximately 58%. The Alice ruling eliminated certain types of claims (business methods on generic computers) but left room for genuine technical improvements. Every major Federal Circuit case since 2016 has identified categories of software that survive. The test is specific: does your invention improve the technology itself?
What about AI and machine learning inventions?
AI patents face higher scrutiny. About 77% of office actions in AI-related technology centers include Section 101 rejections. Recentive Analytics v. Fox (April 2025) held that generic ML applied to a new data domain is abstract. To survive, AI claims must show a specific architectural improvement or a specific technical problem solved in an unconventional way. The USPTO's 2024 examples (47-49) illustrate what works.
Do I need hardware to get a software patent?
Not strictly. Enfish survived with a pure database improvement and no hardware claims. But hardware anchoring provides an additional defense layer. Patents that tie algorithms to specific physical devices (sensors, displays, controllers) have stronger Section 101 positioning than those relying on generic references to "an electronic device."
What happens if I get a Section 101 rejection?
Most software patents face at least one. Common responses: point to specific technical improvements (cite Enfish or McRO), emphasize unconventional component arrangement (cite BASCOM), or challenge the examiner's conventionality assertion (cite Berkheimer, which requires examiners to provide evidence). Technical benchmarks and inventor declarations strengthen all responses. PTAB affirms 88.6% of 101 rejections on appeal, so the examiner-level response matters.
What is the Patent Eligibility Restoration Act?
Proposed federal legislation to reform 35 U.S.C. Section 101 by narrowing the "abstract idea" judicial exception. Would replace judicial exceptions with a statutory framework. Introduced multiple times in Congress. Not yet passed as of February 2026. If enacted, it would significantly change the Alice landscape by reducing examiner discretion.