On August 4, 2025, the USPTO issued a memo to examiners that could make life easier for software patent applicants. While the memo doesn’t change the law, it reminds examiners how to apply the rules on subject matter eligibility under § 101 — and the tone is good news for innovators.
Key Highlights
- Fewer “Close Call” Rejections
Examiners are now reminded not to issue a § 101 rejection unless it’s more likely than not that a claim is ineligible. In other words, if it’s a borderline case, the benefit of the doubt should go to the applicant. - Narrower Use of “Mental Process”
The USPTO stressed that examiners shouldn’t label claim steps as “mental processes” unless they’re things a person could realistically do in their head or with pen and paper. Complex computer operations don’t belong in that bucket. - Recites vs. Involves an Abstract Idea
A claim only recites an abstract idea if it clearly spells it out (like naming a specific algorithm). If it just involves an abstract concept at a high level, it doesn’t automatically trigger a rejection. - Look at the Claim as a Whole
Examiners must consider how all elements of a claim work together, not just piece them apart. The question is whether the invention integrates any abstract ideas into a practical application. - Real Improvements Matter
The memo reinforces that software patents should show a specific improvement to computer technology or another field. Simply using a computer to carry out an idea isn’t enough.
Why This Matters
For software companies, this memo means examiners should be more cautious before issuing a § 101 rejection. By curbing overuse of the “mental process” label and raising the rejection threshold, the USPTO is signaling a more applicant-friendly approach.
Applicants who highlight technical improvements and describe how their inventions provide a concrete solution are now in a stronger position.
The Bottom Line
This memo won’t eliminate subject matter rejections, but it should reduce unnecessary ones. For innovators, that could mean fewer hurdles, faster progress, and better protection for software-driven inventions.
The USPTO is also improving how design-related innovations are evaluated through USPTO Unveils AI Tool to Modernize Design Patent Search.
If your invention involves the visual appearance of a product, a design patent application can help protect its unique look.
Are you ready to take the next step to protect your invention?
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