Artificial intelligence (AI) is transforming industries from healthcare to manufacturing, and companies of all sizes are developing AI-powered tools, machine learning models, and intelligent systems that solve real-world problems.  But as these technologies move from research labs to the marketplace, a critical question arises: can you patent an AI invention?

The answer is yes, in many cases, but the path to patent protection for AI inventions involves specific legal hurdles that every Inventor should understand before filing an application.

What the USPTO Says About AI Patentability

The United States Patent and Trademark Office (USPTO) grants patents for AI-related inventions, but the Applicant must clear a significant hurdle.  Under 35 U.S.C. Sect. 101, ‘abstract ideas’ are not patentable subject matter.  The Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l. (2014) established a two-step test that Patent Examiners now apply to all software and AI-related patent applications.

First, the Examiner determines whether the claims are directed to an abstract idea, such as a mathematical formula or a mental process.  If ‘yes’, the Examiner then asks whether the claims include an ‘inventive concept’ that transforms the abstract idea into something patentable.  Many AI patent applications are initially rejected under this framework, but a skilled Patent Attorney can draft claims that emphasize the concrete, technical implementation of the AI system rather than the underlying algorithm alone.

What Types of AI Inventions Are Patentable?

Not all AI innovations are created equal under patent law.  The following types of AI inventions are generally strong candidates for patent protection:

• AI-Driven Processes: Methods that use machine learning to produce a specific, useful result, such as an AI system that analyzes medical imaging data to identify anomalies with greater accuracy than existing tools.
• Hardware Optimizations: Physical devices or chip architectures designed specifically to run AI models more efficiently.
• Trained Model Applications: Systems where a trained AI model is integrated into a specific product, such as a networking device that uses machine learning to optimize data routing in real time.
• Data Processing Methods: Novel methods of preparing, cleaning, or transforming data for use in AI systems, provided the claims are tied to a concrete technical process.

The key is that the patent application must describe how the AI system works at a technical level, not merely what it does or its intended goal.  Claims framed in specific, concrete terms, rather than abstract ideas, are far more likely to survive examination.

Patent vs. Trade Secret for AI: Which Strategy Fits?

Inventors developing AI technology face a strategic choice that goes beyond the question of patentability.  Even when an AI invention can be patented, the Inventor must decide whether patent protection or trade secret protection is the better fit, or whether a combination of both strategies makes the most sense.

Patent protection makes sense when:

• The innovation is embodied in a product that competitors could reverse-engineer by examining or using it;
• The Inventor plans to license the technology to other companies;
• The Inventor needs to demonstrate proprietary technology to attract investors or partners.

Trade secret protection may be preferable when:

• The innovation involves proprietary training data, internal algorithms, or backend processes that competitors cannot discover by examining the final product;
• The Inventor wants protection that does not expire after 20 years;
• Public disclosure of the innovation (required for a patent) would give competitors a roadmap to develop alternative solutions.

Please note that a patent teaches one to make and use the invention, and patent applications are published 18 months after filing. This means that you have taught the world how to make and use your invention but can only patent it in a few countries.  This means that the Inventor can only stop others from making, using, and selling where they receive an issued patent.  People in all other countries have free use of the invention.

Many AI companies use both strategies simultaneously, patenting customer-facing innovations while keeping backend algorithms and training data as trade secrets.  This hybrid approach can provide comprehensive protection across the full technology stack.

Steps to Protect Your AI Invention

If you have developed an AI innovation and are considering patent protection, the following steps can help you move forward effectively:

• Document the Inventive Concept Early: Record the specific technical problem your AI system solves, how it solves it, and what makes your approach different from what already exists.  Include diagrams, flowcharts, and descriptions of the system architecture.
• Maintain Confidentiality: In the United States, you have a one-year ‘Grace Period’ after any public disclosure to file a patent application.  However, disclosing your invention before filing can forfeit your rights in many foreign countries.  Use Non-Disclosure Agreements (NDAs) when working with collaborators, contractors, or potential investors.
• Conduct a Patent Search: A thorough search of existing patents and published applications will reveal what has already been disclosed in your field.  This helps you identify which aspects of your invention are truly novel and allows your Patent Attorney to draft claims that avoid prior art.
• Work with a Patent Attorney Who Understands AI Technology: The intersection of AI and patent law is technically demanding.  A Patent Attorney having experience in protecting AI Inventions can draft claims that satisfy the USPTO’s subject matter eligibility requirements while capturing the full scope of your innovation.

How Zale Patent Law, Inc. Helps AI Innovators

Attorneys at Zale Patent Law, Inc. collectively have experience in computing, satellite systems, and communications technology, including work on NASA programs and complex digital systems for major technology organizations.  This technical foundation allows Zale Patent Law Attorneys to speak directly with AI Innovators to understand the technical details of their inventions and draft patent applications that withstand rigorous examination.  The firm has handled patents in other highly technical areas spanning computing, digital information systems, and communications technology, among other fields.

Whether you are a startup developing AI-powered products or an established company expanding your AI offerings, protecting your intellectual property is a critical step in securing your competitive position.

Contact Zale Patent Law, Inc. at 570-878-5000, or ip@zalelaw.com to schedule a confidential consultation about protecting your AI invention.