Are Software Patents Back?

Backdrop:  For the past 10 years I have warned inventors about the risks of filing software patents.   I usually end up telling them that they have less than a 50% chance of getting their software related invention approved and even a smaller chance of that patent standing up to any challenge.     But times, they are a changing. 

Over the past few weeks the United States Patent and Trademark Office (USPTO) is sending clear, encouraging signals that software patents are very much alive and moving into more friendly territory.

In short: “Yes” software patents may be back.

What changed?

Here are some of the key signals pointing toward a more welcoming era for software-related innovations:

  • When John Squires became USPTO Director on September 23 2025, he didn’t just start; the very next day he signed his first patents—both of which came from technology sectors that often face elevated eligibility scrutiny. One was in the distributed-ledger/crypto space and the other in medical diagnostics.
  • In his remarks, Director Squires emphasised that “applied technologies are foundational and form the backbone of America’s growth.”  He also committed to the USPTO being “open for business — especially for the technologies of tomorrow.”
  • On November 5 2025, the USPTO rolled out a memo and approach that underline a broad take on eligibility under 35 U.S.C. §101. The agency affirmed that the existing law is sufficient — no major overhaul needed — and that examiners should look for what Director Squires calls the “something more” beyond just abstract ideas.
  • The USPTO referenced the precedent of Enfish, LLC v. Microsoft Corp. (2016) which held that improvements to computer data structures are patent-eligible. In doing so, they also explicitly included modern technologies such as AI and machine-learning (“when technology rewires how information flows, that’s when invention begins”).

 

What this means for software patent hopefuls

If you’re thinking “Does my software invention stand a chance?” here are some important takeaways:

  • Software patents can be viable again. The eligibility bar is being clarified and shifted toward recognizing that many software inventions are indeed patent‐eligible, especially when they result in a technical improvement, architectural innovation, or re-engineering of how information is processed.
  • It’s not automatic. The USPTO still emphasizes that you must show more than “just an abstract idea.” You need to show how your software changes how something is done, improves performance, reduces errors, or otherwise provides a technical benefit. The “something more” standard remains.
  • Smaller inventors should pay attention. Historically, large companies with deep patent teams often had an edge. With this shift, smaller inventors and startups working on software innovations now have reason to engage with the patent process rather than assume it’s closed off to software.
  • Writing matters. How you draft the application matters. Make sure you describe how your software works (servers, processors, memory, clients, network flows), why it’s an improvement, what the technical challenge was, and how your invention solves it. Framing it in terms of “this software system does X with Y improvement” will align with the USPTO’s direction.
  • Budget and strategy remain important. A software patent may now be more attainable, but it still takes thoughtful planning: feasibility, prior art search, drafting, budget for prosecution, and possibly working with an experienced patent agent or attorney who understands how to articulate software innovation in patent friendly language.

A short-list of practical tips if you’re going for a software patent

  1. Frame the invention as a technical solution, not just a business method. Example: “Our system improves data-structure performance under constrained memory” is stronger than “Our app improves e-commerce checkout.”
  2. Include specific architecture: describe components like processors, memory, modules, flows of data, client/server interaction, etc. This aligns with how examiners are being guided.
  3. Explain the improvement: What didn’t work before? What error, delay, inefficiency did your software overcome?
  4. Be mindful of claims: Claims should clearly capture the innovation in structure and/or method. Avoid overly abstract language.
  5. Consider the prior art: Even though eligibility is loosening, novelty and non‐obviousness (Sections 102/103) still apply. Do your homework to make sure your invention is new and isn’t simply a trivial variation.
  6. Budget accordingly and work with a good agent: Working with someone who understands software patents and the current USPTO mindset will increase your chances.

Why this Outlook Matters

For many years, software inventors lived under uncertainty: Is my “software patent” going to be rejected? Will the examiner say “this is just an abstract idea”? Will the USPTO, or the courts, continue to interpret the eligibility rules narrowly?

With the recent signals from the USPTO, you can approach your software innovation with more confidence. Rather than assuming “software = dead for patents,” you can now look at the landscape, see the opening, and ask yourself: How does my software invention make something work better, faster, smarter, or more reliable? Then go to work on articulating that.

Wrapping Up

So, are software patents back? In many ways, yes — more than they’ve been in a long time. The USPTO is signaling clearly: software inventions can and should be eligible when they are properly drafted, clearly show a technical improvement, and align with modern technological architecture. For small inventors, this is an encouraging moment.

If you’ve built a software innovation—especially one that solves a technical challenge, manages data in a new way, improves processing, or leverages AI/ML—this may be the right time to explore a “software patent” strategy. The door is opening wider.