Skip to content

Are Software Patents Harder to Get Since Alice?

The answer

The definition decides the answer. Among 1,308,614 US utility applications filed 2020 to 2022, software defined narrowly was granted 75.8% of the time against 76.4% for everything else, which is the same rate. Define software one class wider and it was granted 79.3% against 75.5%, which is better than everything else. Business methods are the real exception. That group average also hides a split: applications whose first Office action raised section 101 were granted far less often than those that never met one, and software’s ordinary overall rate rests on the two thirds that never did.

The same question, the same data, opposite answers
Share granted of 1,308,614 US utility applications filed 2020 to 2022, by two defensible definitions of software. Narrow is G06F, G06N and G06Q; broad adds H04L, G06T and G06V. Bars run from zero.
Software, narrow definition
75.8%
Everything else
76.4%
Software, broad definition
79.3%
Everything else
75.5%
Draw the line one way and software trails the rest of the patent office by 0.6 points. Draw it one class wider and software leads by 3.8 points. Nothing about the applications changed between those two charts, only which ones were counted as software.

The belief being tested here is a common one, and it bundles several claims together: that software patents are harder to get and harder to enforce since Alice, that claims now have to be tied to a concrete technical improvement, and that a patent is a strong position rather than an automatic win. Those are different claims, and the patent office record can answer some of them and not others.

Each claim against what the USPTO record shows. "Not tested" means the record cannot answer it, not that it is wrong.
The claimVerdictWhat the record shows
Alice raised eligibility rejectionsTrue, per the USPTOThe USPTO's own study found the chance of a first-action 101 rejection rose 31% in 33 affected technology areas in the 18 months after the decision.
Harder to get, for software overallDepends on the definitionNarrowly defined, 75.8% granted against 76.4%. Adding networks and image processing, 79.3% against 75.5%.
Harder to get, for business methodsTrueBusiness-method applications (G06Q) were granted 57.2%, and 38.3% ended without a patent.
A harder road to the grantTrue70.9% of non-final actions on AI applications carried a 101 rejection in July 2025, against 16.0% across all fields.
Claims must show a concrete technical improvementNot testedA statement of the legal standard, which this record cannot test. Examiners do write in the Guidance's terms: "practical application" appears in 81.2% of 101 rejections in 2025.
Harder to get, once a 101 rejection is raisedTrueOf 2020 filings in narrow software, those whose first action raised 101 were granted 60.0% of the time against 85.5% for those that did not. The same gap appears in 2021 filings.
Harder to enforceNot testedThis record covers the patent office only. Nothing here measures litigation or enforcement.

The definition decides the answer

There is no official list of software patents. Any answer depends on which CPC classes you count, and the two defensible choices point in opposite directions.

1,308,614 US utility applications filed 2020 to 2022, classed by first CPC symbol. USPTO Open Data Portal record of 26 October 2026.
Definition of softwareApplicationsGrantedEverything else
Narrow: G06F, G06N, G06Q170,85375.8%76.4%
Broad: adds H04L, G06T, G06V262,81079.3%75.5%

Neither number is wrong. The narrow definition keeps business methods in and leaves networking out, and the broad one does the reverse. Which way that comparison points rests entirely on which of those two lists the speaker has in mind, and most people stating the claim have not picked one. The road to the grant is a separate question, and the answer there does not depend on the definition.

What the classes actually look like

Pooling them hides the spread. The classes usually called software do not behave alike, and the gap between the best and the worst is wider than the gap between software and everything else.

Granted, by CPC class
US utility applications filed 2020 to 2022, classed by first CPC symbol, status as of 26 October 2026. Bars run from zero.
H04L networks (55,779)
87.3%
G06T image processing (21,263)
85.5%
G06F computing generally (116,948)
83.4%
G06V image recognition (14,915)
81.4%
All other utility (1,137,761)
76.4%
G06N machine learning (15,740)
64.0%
G06Q business methods (38,165)
57.2%

G06N is the one to read carefully rather than quickly. Its 64.0% is not a measured failure rate: 15.7% of those applications were still pending on the data date, the highest share of any class here, because machine-learning filings are recent and many have not finished. Among the G06N applications that have resolved, 75.9% were granted. The class share can only hold at 64.0% or climb as the rest finish, since a pending application can still go either way, and the ones still pending are not a random sample of the class, so 75.9% is not a forecast either.

Classed by the first CPC symbol only, so an application with claims spanning two classes is counted once, in one of them. H04L, G06T and G06V mix software with hardware, which is exactly why the definition above changes the answer.

Business methods are the exception

One group does behave the way the belief describes, and it is the group Alice was about. Following the business-method art units themselves rather than a CPC class, the fall and the partial recovery are both visible.

Business-method art units: share granted, by filing year
Art units 362x, 368x and 369x. USPTO PEDS final snapshot, status to 7 March 2025. Columns run from zero on a 0 to 100% scale, so each column's height is the share it shows.
47.2%2004
2008
28.8%2013
53.3%2019
Over the same sixteen filing years the rest of technology center 3600 moved the other way, from 67.1% to 80.2%. The two lines diverge through the Alice years and have not met again.
Share granted by filing year, business-method art units (362x, 368x, 369x) against the rest of technology center 3600. USPTO PEDS final snapshot, status to 7 March 2025.
Filing yearBusiness-method art unitsRest of center 3600Applications
200447.2%67.1%8,782
200544.5%62.6%8,443
200640.8%61.4%8,019
200737.0%63.3%9,256
200838.5%66.8%9,036
200939.8%69.6%8,020
201043.4%70.7%9,125
201137.6%71.3%9,472
201234.5%73.9%11,375
201328.8%75.7%13,344
201431.0%76.7%13,226
201538.0%77.9%11,126
201642.0%79.9%10,158
201746.2%81.0%10,457
201848.9%80.0%10,789
201953.3%80.2%12,328

Applications filed in 2013 were mostly still pending when Alice was decided in June 2014, and fewer than three in ten were ever granted. By 2019 filings the rate had recovered to 53.3%, still well below the 80.2% of their neighbours in the same technology center.

The gap to the rest of center 3600 widened by 15.8 points between 2008 to 2010 filings (28.4 points behind) and 2012 to 2014 filings (44.2 points behind). Reading the series year by year, which was done after that window comparison rather than planned, it was already widening before then: 19.9 points in 2004, 33.7 by 2011. A step that size by 2011 fits Bilski v. Kappos (June 2010) at least as well as anything later, so the series shows timing and isolates no single decision.

Filing year is not examination year. An application filed in 2012 was usually examined in 2014 to 2016, so a filing-year series lags the decision it is being read against. Nothing here shows that Alice caused the change: the timing is consistent with it, with Bilski before it, and with the 2019 eligibility guidance after it.

Where the belief is right: the road, not the destination

The grant rates above describe where applications end up. They say nothing about what it takes to get there, and that is where the belief holds up best. Eligibility rejections are heavily concentrated in software and AI.

Non-final Office actions carrying a section 101 rejection, July 2025
39,306 non-final actions mailed that month, matched on the action text. AI means the application's first CPC symbol is in G06N. Bars run from zero.
AI applications (G06N)
70.9%
Computer architecture (center 2100)
48.2%
Transportation and e-commerce (3600)
34.5%
All fields
16.0%
What a section 101 rejection actually says, 2025
Share of the 61,145 non-final actions carrying a 101 rejection in 2025 whose text contains each phrase, matched on the action text. Bars run from zero.
"significantly more" (Alice step two)
82.8%
"practical application"
81.2%
MPEP 2106 cited
66.1%
"Prong One" or "Prong Two"
58.6%
"mental process"
58.0%
"mathematical concept"
32.2%
"well understood, routine, conventional"
30.9%
"organizing human activity"
26.8%
Alice named
21.7%
the 2019 Guidance named
18.3%
The doctrine reaches applicants through the Guidance's vocabulary. The cases are still the law, and examiners do cite them, but examination runs on the operational terms. "Significantly more" and "practical application" appear in more than four rejections in five, while Alice itself is named in 21.7% and the 2019 Guidance in 18.3%. Four 101 rejections in five never name the case the doctrine comes from.
Grounds that come back in the next rejection
Of first non-final rejections citing each ground, the share where the same ground appears again in the next action. 82,769 first non-finals citing 101. Bars run from zero.
Obviousness (103)
90.9%
Eligibility (101), all centers
56.2%
Eligibility (101), center 3600
76.9%
Novelty (102)
49.0%
Written description (112)
48.2%
Obviousness nearly always returns. Eligibility returns about half the time overall, and three times in four in the center that holds the business-method art units.

The same measure, month by month

One month is a snapshot. The series is what shows the arc, and it is the reason this page treats the road and the destination as separate questions.

Share of non-final Office actions carrying a section 101 rejection, by month mailed, from the USPTO Office action text to 2 January 2026. AI means the application's first CPC symbol is in G06N.
MonthAll fieldsCenter 2100Center 3600AI (G06N)AI actions
2024-0111.9%30.8%28.0%53.7%149
2024-0212.6%31.2%29.7%57.9%195
2024-0312.9%32.8%30.5%53.5%217
2024-0412.9%33.7%28.7%53.5%155
2024-0512.8%32.4%30.1%52.5%240
2024-0613.8%33.6%31.8%57.4%223
2024-0713.4%34.6%30.4%62.5%296
2024-0813.8%35.1%32.4%59.2%434
2024-0914.5%36.1%33.5%60.2%532
2024-1014.0%35.8%33.3%61.8%191
2024-1114.3%36.3%32.4%58.8%177
2024-1215.0%37.1%34.9%59.1%362
2025-0113.9%39.1%32.4%61.8%254
2025-0214.2%41.4%32.1%62.0%234
2025-0314.8%41.8%34.5%63.9%631
2025-0415.0%42.9%34.0%64.9%541
2025-0516.0%46.2%35.1%65.3%738
2025-0616.0%46.3%35.6%66.9%706
2025-0716.0%48.2%34.5%70.9%746
2025-0815.4%44.7%34.3%63.4%636
2025-0914.7%39.1%32.6%61.0%613
2025-1013.7%35.5%31.4%54.1%665
2025-1114.7%41.7%32.3%60.2%548
2025-1214.4%37.8%31.5%56.8%639

Monthly AI counts run from 149 to 746 actions, so a single month moving a few points is noise. The arc is not: the AI share ran 53.7% in 2024-01, peaked at 70.9% in 2025-07, and was 56.8% by 2025-12.

Once raised, eligibility also tends to stay. Of first non-final rejections citing section 101, the ground came back in the next action 56.2% of the time overall, and 76.9% of the time in transportation and e-commerce, the center that contains the business-method art units.

A rejection is not an outcome. These figures count how often eligibility is raised and how often it returns. They do not follow what became of the applications that received one. The class-level grant shares higher up pool applications with and without a 101 rejection, so a field can carry both the highest rejection rate and an ordinary grant share without this record showing how those two facts fit together. The outcome of the rejected applications themselves is measured further down, under After a 101 rejection, and it is not the same answer.

After a 101 rejection

Everything above counts how often eligibility is raised. It does not follow the applications that met one, and until now this page said so and left it there. That question now has an answer, and it changes the shape of the page's own conclusion.

Granted, of applications that resolved, by whether the first Office action raised section 101
US utility applications filed 2020 whose first non-final action could be matched to its text. Outcomes to 26 October 2026. Bars run from zero.
All utility applications, met a 101
65.3%
All utility applications, did not
80.1%
Narrow software (G06F, G06N, G06Q), met a 101
60.0%
Narrow software (G06F, G06N, G06Q), did not
85.5%
G06Q business methods, met a 101
46.1%
G06Q business methods, did not
79.0%
G06N machine learning, met a 101
64.5%
G06N machine learning, did not
84.7%
G06F computing generally, met a 101
72.2%
G06F computing generally, did not
86.6%
H04L networks, met a 101
82.5%
H04L networks, did not
88.7%
Narrow software as a group is granted at about the ordinary rate. That average is made of two very different halves: the third that met a 101 rejection was granted 60.0% of the time, and the two thirds that did not were granted 85.5%, which is above the all-utility figure. These bars carry no interval. The check standing in for one is the 2021 cohort in the table below, which reproduces every difference within a few points.

So the page's own answer needs splitting in two. "A harder road, an ordinary destination" holds for software as a group, and does not hold for the applications that actually meet an eligibility rejection. Both are true at once, because the applications that never meet one are granted better than average.

Granted of resolved, 2020 filings, by class and by whether the first action raised section 101. The last column repeats the difference for 2021 filings, which is the check that the pattern is not one cohort.
ClassFirst actions with 101Met a 101Did notDifference2021
Narrow software33.0%60.0%85.5%-25.5-26.0
G06Q61.9%46.1%79.0%-32.9-33.4
G06N42.7%64.5%84.7%-20.2-22.6
G06F21.5%72.2%86.6%-14.4-13.0
G06V17.0%73.8%84.1%-10.3-9.1
H04L12.8%82.5%88.7%-6.2-6.9
G06T16.2%85.0%87.1%-2.1-5.0
All other classes7.5%66.4%79.1%-12.7-13.7
All utility10.9%65.3%80.1%-14.8-15.9

Class mix explains some of the all-utility gap and not most of it. Reweighting the applications that met a 101 rejection to the class mix of those that did not moves their rate from 65.3% to 71.5%, against 80.1%. About six of the fifteen points are the kinds of application that attract eligibility rejections; the rest sits inside the classes.

Whether it is dropped matters about as much as whether it was raised

An eligibility rejection in a first action is not a verdict. The next action is where it either goes away or does not.

Granted of resolved, after a first-action 101
6,926 applications filed 2020 whose first non-final raised 101 and whose next rejection could also be matched. Bars run from zero.
101 kept in the next rejection
51.4%
101 dropped
72.6%
Never had one, but had a second rejection
74.1%
A dropped eligibility rejection leaves an application roughly where it would have been without one (72.6% against 74.1%, that last group added as a reference after the results rather than as part of the test). A kept one does not. In the centre holding the business-method art units the kept figure is 41.1%.

A kept rejection does arrive with more rounds of prosecution, which is the obvious objection to the chart above, and it has now been tested rather than left standing. Comparing applications that ended with the same total number of rejections, two, three, four, or five or more, the kept group was granted less often in every one of them, by 14.6 to 21.7 points. Reweighting the kept group to the dropped group’s mix of rounds leaves 19.9 points of the raw 21.2, so holding the number of rounds fixed accounts for about 1.3 of them and not for the gap. The objection is a real one to raise, and this pair of figures was reported after the results to show that: 52.8% of applications whose 101 was kept went on to three or more rejections, against 41.1% of those where it was dropped.

Granted of resolved at the same number of rejections
The same 2020 applications, split by how many rejections they received in all. Counts are applications in each arm. Bars run from zero.
2 rejections, kept (1,828)
54.8%
2 rejections, dropped (1,796)
74.9%
3 rejections, kept (725)
60.7%
3 rejections, dropped (558)
80.7%
4 rejections, kept (730)
39.0%
4 rejections, dropped (403)
60.7%
5 or more rejections, kept (592)
42.0%
5 or more rejections, dropped (294)
56.6%
Kept is lower in all four, by 14.6 to 21.7 points. The five-or-more group is the thin one, at 592 and 294 applications, and it is also the one with the smallest gap.
Granted of resolved by total rejections, 2020 filings, for applications whose first non-final raised section 101. Reweighting the kept group to the dropped group's mix of rounds gives 52.7% against 72.6%.
Rejections in allKeptApplicationsDroppedApplicationsDifference
254.8%1,82874.9%1,796-20.2
360.7%72580.7%558-20.0
439.0%73060.7%403-21.7
5 or more42.0%59256.6%294-14.6

The pattern repeats outside this cohort. For 2021 filings the reweighted difference is 21.4 points against a raw 22.7, and for narrow software it is 21.2 in 2020 and 27.7 in 2021. For software only the two-rejection group has 200 or more applications in both arms, so there the verdict rests on that group with the three smaller ones pointing the same way.

Two things that does not settle. The number of rounds comes after the rejection was kept or dropped, so this holds fixed something a kept rejection may itself cause. And it does not touch what leads an examiner to keep one, which is the claims, the invention and the reply, and which may be what ends the application. Every application here received a second rejection, so they are already the harder cases. This still goes together rather than causes.

Art units that raise it more often grant somewhat less

Grouping 387 art units by how often their first actions raise eligibility, the pattern is not a steady slope. It is the top group.

Mean granted of resolved, by how often an art unit raises section 101
387 art units with at least 200 matched 2020 applications, 156,912 applications. Grouped into fifths by the share of their first actions raising 101, with each fifth's median share shown. Bars run from zero.
Lowest fifth (0.9% of first actions)
78.6%
Second (2.3% of first actions)
80.3%
Middle (5.4% of first actions)
79.0%
Fourth (9.3% of first actions)
82.1%
Highest fifth (21.1% of first actions)
73.7%
The highest fifth does sit apart: 73.7% against 80.0% for the other four, a difference of 6.3 points with a 95% interval of 3.1 to 9.5. That comparison was chosen after the five groups were seen rather than before, so it describes the shape of the result and does not test it. The pre-registered test is the rank correlation, which inside each technology centre is -0.197 (95% interval -0.291 to -0.099), and which the study's own thresholds call neither a clear association nor an absent one.
Spearman rank correlation between an art unit's share of first actions raising section 101 and its granted-of-resolved rate, computed inside each technology centre. Pooled across all centres the figure is -0.049 (-0.148 to 0.051); ranked within centre it is -0.197 (-0.291 to -0.099). The centre by centre breakdown below was read off after that within-centre result rather than planned, so it shows where the association sits and does not test it.
Technology centreArt unitsCorrelation95% intervalInterval
2100 Computer architecture13-0.775-0.929 to -0.39excludes zero
3600 Transportation and e-commerce59-0.541-0.7 to -0.331excludes zero
2400 Networks45-0.412-0.629 to -0.135excludes zero
3700 Mechanical43-0.226-0.493 to 0.08includes zero
2800 Semiconductors60-0.153-0.392 to 0.105includes zero
2600 Communications59-0.118-0.363 to 0.142includes zero
1600 Biotechnology and organic chemistry430.04-0.263 to 0.336includes zero
1700 Chemical and materials640.122-0.128 to 0.357includes zero

Two numbers in that caption are worth comparing. Pooled across every centre the association is -0.049, an interval straddling zero and effectively nothing. Ranked inside each centre it is -0.197. The difference is not a finding about patents, it is a property of the arithmetic: centres differ in both how often they raise eligibility and how often they grant, so pooling them lets the differences between centres stand in for a relationship within them. The within-centre figure is the one to read.

3 of the 8 intervals exclude zero. Testing 8 centres at a 95% interval would be expected to put about 0.4 of them there by chance alone, and 3 or more happens about 0.6% of the time, so this is not an artefact of having run 8 tests.

The same five groups with their counts and intervals. Each interval is a 95% interval for the mean across art units, counting each unit once. The grouping into fifths was added after the results to draw the chart and was not part of the plan, so these five rows describe the data rather than test anything.
FifthShare of first actions raising 101Art unitsApplicationsMean granted of resolved95% interval
Lowest0.0% to 1.6%7732,13478.6%76.3 to 80.9
Second1.6% to 3.6%7738,46380.3%78.4 to 82.2
Middle3.6% to 7.1%7730,64779.0%76.0 to 82.1
Fourth7.1% to 14.2%7726,99482.1%79.8 to 84.4
Highest14.5% to 88.3%7928,67473.7%70.7 to 76.7

Art units are offices rather than people, and none is named here. An art unit's mix of applications is not random, so a unit that raises eligibility more often is also examining different subject matter.

These go together; none of them is a cause. How a claim is drafted, what kind of invention it is and who filed it plausibly drive both whether eligibility is raised and how the application ends. A section 101 rejection also usually arrives alongside other grounds, and nothing here separates it from them. Read these as the shape of the record, not as the effect of a rejection.

Coverage: a first action counts here only when it could be matched to its own text, which was possible for 50.3% of 2020 applications (177,530 of 352,623), because the action text is incomplete for 2021 to 2024. The matched and unmatched halves were granted within about two points of each other, which limits the bias without excluding it. Eligibility rejections are found by matching the action text; checked against a reading of 300 actions, the pattern found 98.1% of their 101 rejections and raised no false ones.

What happens on appeal

An applicant who cannot move an examiner can appeal to the Patent Trial and Appeal Board. The record there is the one place in this data where an eligibility dispute is settled by someone other than the examiner who raised it, and the pattern has been steady for most of a decade.

Section 101 appeals affirmed outright
Share of PTAB decisions whose issue list includes section 101 that affirmed the examiner outright, by decision year. Bars run from zero.
2016 (804 decisions)
56.3%
2018 (2,554 decisions)
82.5%
2020 (2,071 decisions)
77.0%
2022 (666 decisions)
78.7%
2024 (805 decisions)
82.6%
2026 (758 decisions)
78.2%
2016 is the outlier rather than the trend. Since 2017 the affirmed-outright share has sat between 73.8% and 82.6% every year, and reversals have run between 12.6% and 19.4%.
14,688 PTAB decisions whose issue list includes section 101, by decision year, to 28 October 2026. One row per decision rather than per application, and section 101 need not be the ground the Board decided.
Decision yearDecisionsAffirmed outrightAffirmed in partReversed
201680456.3%17.2%23.9%
20171,70375.7%7.0%13.8%
20182,55482.5%3.4%13.0%
20192,50773.8%4.3%19.4%
20202,07177.0%4.6%15.5%
20211,04374.1%5.3%17.2%
202266678.7%4.7%12.8%
202368278.4%3.8%14.4%
202480582.6%2.4%12.8%
20251,09580.0%4.1%12.6%
202675878.2%3.6%14.2%

These are appeals, which are a selected group: an applicant appeals when the disagreement is worth the cost and the delay, so this is not the outcome of eligibility disputes generally. 2026 is a partial year.

The one causal claim, and it is not ours

Nothing above establishes cause. A filing-year series cannot separate Alice from everything else that changed. The USPTO's own economists ran the comparison that can, measuring Alice-affected technologies against others around each event, and their findings are quoted here rather than recomputed.

USPTO Office of the Chief Economist, Adjusting to Alice (IP Data Highlights no. 3, April 2020). In the 18 months after the decision, the chance of a first-action section 101 rejection rose 31% in the 33 affected technology areas, and variability between examiners rose 26%. A year after the 2019 eligibility guidance, that chance had fallen 25% and variability had fallen 44%.

Read together with the rest of this page, that is the shape of the answer. Alice changed the road measurably. In the cohorts measured here, it did not show up as a lower grant share for software as a whole. Business methods are where it shows in both.

What this record cannot say

  • Enforcement is outside the data. Everything here comes from the patent office: applications, Office actions and appeal decisions. None of it covers litigation, licensing or what a granted patent is worth, so the claim that software patents are harder to enforce is neither supported nor contradicted.
  • Only published or granted applications appear. An application abandoned before publication, usually one filed with a request not to publish, never enters the record, so every grant share here may run slightly high. About 3.6% of 2020s serial numbers are missing, which could lower the 2021 share from 76.3% to about 73.9% at most.
  • Provisional applications are not counted at all, since they are never examined or published.
  • Filing year is not examination year, and nothing here shows that Alice caused any change. The timing is consistent with it, and with the 2019 guidance that followed.

All public USPTO data, read in the ObviouslyNot continuation study (studies S4b, S5, S14, S19b, S21, S22, S24, S27 and S28). Outcome by class is the Open Data Portal record of 26 October 2026; the filing-year series is the PEDS final snapshot to 7 March 2025; rejection grounds are every non-final Office action mailed 2024 to 2025, matched on the action text.

Describes the record; it is not legal advice and says nothing about any one application.

The figures on this page are available as a CSV: /data/are-software-patents-harder-since-alice.csv. It is generated from the tables and charts above, so it carries the same numbers and cannot fall out of step with them.