📅 2026 Update: Key Developments in Software Patent Law

Since the original article was written, several important changes have occurred in U.S. patent law that directly affect software patents. These updates reflect the evolving nature of technology and innovation, especially with the rise of artificial intelligence. The earlier article continues further down the page.

🤖 Revised Inventorship Guidance

On November 26, 2025, the USPTO clarified that only natural persons can be named as inventors on patent applications. This change applies even when AI systems assist in the invention process. This means that AI cannot be listed as an inventor, which may impact how software patents involving AI are filed.

💵 Patent Fee Adjustments

Effective January 19, 2025, the USPTO updated its patent fees to enhance the quality of patent examinations and support operational costs. The basic filing fee for a utility patent application is now $350 for standard applicants, with reduced fees for small and micro entities.

🔄 Subject Matter Eligibility Guidance

On July 16, 2024, the USPTO issued updated guidance on subject matter eligibility for patents, focusing on AI inventions. This guidance helps clarify how claims under 35 U.S.C. § 101 are evaluated, ensuring that innovations in technology can be properly assessed for patent protection.

📑 Adoption of WIPO Standard ST.26

As of July 1, 2024, the USPTO requires patent applications that include nucleotide or amino acid sequences to be submitted in XML format. This aligns U.S. regulations with the WIPO Standard ST.26, making it easier to process relevant applications.

📅 Terminal Disclaimer Practice Changes

On May 9, 2024, proposed changes to terminal disclaimer practices were introduced. These changes aim to prevent the extension of patent exclusivity terms through nonstatutory double patenting. This could impact how patent terms are managed for software innovations.

📌 Key Points Summary

  • 🤖 Only natural persons can be inventors for patent applications.
  • 💵 New patent fees are in effect, starting at $350 for utility applications.
  • 🔄 Guidance on subject matter eligibility has been updated, especially for AI.
  • 📑 Applications with nucleotide sequences must be submitted in XML format.
  • 📅 Changes to terminal disclaimer practices aim to streamline patent terms.

💡 Tips for Navigating Software Patents

Before taking any steps, it's important to discuss your specific situation with your attorney.

📄 Understand Application Deadlines

Utility patent applications need to be filed within one year of the first public disclosure of the invention. This deadline is crucial for maintaining foreign filing rights.

💰 Explore Fee Reductions

If you qualify as a micro entity, you can receive an 80% fee reduction on most USPTO fees. This option is available for applicants with limited income or a history of few patent applications.

📧 Use Electronic Filing

The USPTO encourages using the Patent Center for electronic filing. This method streamlines the process for submitting patent applications and related documents.

🔍 Know the Maintenance Fee Schedule

Maintenance fees are due at 3.5, 7.5, and 11.5 years after the patent grant. There is a six-month grace period for late payments, so it's crucial to stay on top of these deadlines.

📝 Prepare for Terminal Disclaimers

If facing nonstatutory double patenting rejections, applicants must file a terminal disclaimer. This step is necessary to disclaim any patent term extension that would exceed a prior patent's term.

📊 Keep Up with Regulatory Changes

Stay informed about updates from the USPTO, especially concerning guidance on AI inventions and other emerging technologies. Keeping up with these changes can help you better navigate the patent process.

🏆 Free Options Ranked by User Reviews (2026)

No national paid service in the area of software patents met the review threshold, so this section highlights free government and nonprofit resources available to assist inventors.

🥇 1. USPTO Resources

The USPTO offers a variety of free resources to help inventors and applicants. These resources include guides, webinars, and a contact center that provides direct assistance on patent applications and processes.

🥈 2. Small Business Administration

The Small Business Administration (SBA) provides resources for small businesses navigating the patent process. They offer counseling services that help entrepreneurs understand their options and the steps required for patent applications.

🥉 3. Patent Center

The Patent Center is a key tool provided by the USPTO for electronic filing. It simplifies the submission process for patent applications and allows users to track their application status online.

4️⃣ Inventor Assistance Program

The USPTO's Inventor Assistance Program connects inventors with pro bono legal assistance. This program is designed to help those who cannot afford legal help navigate the complexities of the patent system.

5️⃣ Pro Bono Patent Assistance

Various nonprofit organizations provide pro bono patent assistance for low-income inventors. These programs aim to give individuals the support they need to pursue their patent rights without the financial burden.

🔎 Check Before You Pay

  • 🔍 Ensure any service has good reviews.
  • 💬 Ask about the costs upfront.
  • 📚 Verify credentials and experience.
  • 📅 Confirm timelines for services.

❓ Frequently Asked Questions

🤔 What is a utility patent?

A utility patent protects new inventions or discoveries. It covers processes, machines, articles of manufacture, or compositions of matter, providing exclusive rights for 20 years.

🔍 How long does the patent examination take?

The USPTO aims to complete the examination of utility patent applications within 24 months from the filing date. This timeline can vary based on application complexity and backlog.

📅 What happens if I miss the maintenance fee deadline?

If you miss the maintenance fee deadline, you have a six-month grace period to make the payment without losing your patent rights. After this period, the patent may expire.

📝 Can I file a patent application without a lawyer?

Yes, individuals can file patent applications without legal representation. However, navigating the process can be complex, so it's beneficial to seek guidance from available resources.

📊 What is micro entity status?

Micro entity status is for applicants with limited income and few prior patent applications. This status allows for an 80% reduction in most patent fees, making it more affordable to obtain and maintain patents.

🕒 How do I file a terminal disclaimer?

To file a terminal disclaimer, applicants must submit a document that disclaims the portion of the patent term that extends beyond a prior patent's term. This filing helps address nonstatutory double patenting issues.

⚖️ Recent Court Cases on Software Patents

Recent court rulings have clarified various aspects of software patent law, touching on eligibility and enforcement. These cases reflect ongoing trends in how software innovations are protected under U.S. law.

Explore more recent rulings in the news section: more rulings on the news page.

End of October 2026 Update





Software patents were not always offered in the United States. There has always been two sides that argue if they should be issued or not issued at all. With technological advancements in current society, it is hard to imagine patent protection not being offered to software. Back in the 1960s, patents were not offered to software. 

This is because the software was simply performing mathematical algorithms which are not patentable. Those against patenting software only saw mathematical equations being performed by a computer and appearing on a screen. There was no other functional or duty being served by the software therefore it could not be patented. Mathematical equations are considered abstract and abstract ideas are not patentable.

In the 1980s, the patent office began to change its position regarding software patents. In 1981, the Diamond v. Diehr case was the first in which the courts ruled a software should be protected by a patent. The software in this case offered instructions for "curing" or molding rubber with heat. 

The Facts on Software Patents

Rather than just offering equations, the software gave specific instructions for molding rubber and removing the rubber from heat. The court ruled this was a patentable software. This case did not settle all confusion regarding software that contained mathematical equations and other elements that may make it patentable.

In the 1990s, the Federal Court ruled all software that converted numbers into other, real world values could be patent protected. The State Street Bank & Trust v. Signature Financial Group