On December 16, Gianna Cricco-Lizza, Frank Gasparo, Ralph Dengler, and Sophia Gunzburg published “Software Patents May Face New Eligibility Scrutiny” in Law360. The following is an excerpt:
Patent practitioners have seen a shifting landscape for patent eligibility under Title 35 of the U.S. Code, Section 101, since the U.S. Supreme Court's 2012 and 2014 seminal decisions in Mayo Collaborative Services v. Prometheus Laboratories Inc, and Alice Corp. v. CLS Bank International.
Now, the U.S. Patent and Trademark Office issued guidance on Nov. 28, 2025, rescinding large portions of artificial intelligence guidance that was issued under President Joe Biden. The new framework treats AI systems as tools only and decrees that no separate eligibility standard applies when examiners consider applications for AI-assisted inventions.
Litigators and in-house counsel who are frequently targeted by lawsuits related to software and business logic patents should reassess how and when to assert Section 101 eligibility challenges.
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