Patent Law for Software and AI
Patent prosecution focused on software, machine learning, and AI-driven inventions — drafted by an attorney who is also a working software engineer.
Patent Eligibility for Software and AI Inventions
Since the Supreme Court's decision in Alice Corp. v. CLS Bank International, software patents have faced heightened scrutiny under 35 U.S.C. § 101. Under the two-step framework that followed, claims directed to an abstract idea — a category that examiners and courts frequently apply to software — are ineligible unless they recite something significantly more than the abstract idea itself. Many software applications fail at the USPTO not because the underlying invention lacks merit, but because the claims were written in a way that invites a § 101 rejection.
Eligibility problems are largely addressed at the drafting stage. Claims that describe a specific technical solution to a specific technical problem — an improvement to how a computer system actually functions, rather than the mere automation of a business practice — fare far better under the Alice framework. We draft applications that ground the invention in its technical architecture: the data structures, the processing steps, the system-level behavior that makes the invention work. That framing has to be built into the specification from day one; it cannot be bolted on during prosecution after a rejection arrives.
The Patent Prosecution Process, Start to Finish
Patent prosecution is a multi-year process with defined stages, and understanding those stages helps you plan budget and timing around your product roadmap. We handle each phase and keep you informed of where your application stands and what comes next.
An engagement typically begins with a patentability analysis: a search of existing patents and published literature to assess whether your invention is likely new and non-obvious before you invest in a full application. From there we draft the application — the specification, drawings, and claims — and file with the USPTO. Most applications receive at least one office action, in which an examiner rejects or objects to some or all of the claims. Responding to office actions, including conducting examiner interviews where productive, is a normal part of the process rather than a sign of trouble. When the examiner is satisfied, the application is allowed, the issue fee is paid, and the patent grants.
- Prior-art search and patentability analysis
- Provisional and non-provisional application drafting
- USPTO filing and prosecution
- Office action responses and examiner interviews
- Allowance, issuance, and maintenance
Portfolio Strategy: More Than One Patent
A single patent protects a single set of claims. A portfolio protects a business. We help clients think beyond the first filing: continuation applications keep a patent family open so claims can be adjusted as the product and the competitive landscape evolve; divisional applications capture inventions an examiner deems distinct; and follow-on filings track the features your engineering team ships next.
Just as important is deciding what not to patent. Patents require public disclosure, and for some innovations — internal algorithms, training pipelines, processes competitors cannot observe from the outside — trade secret protection may serve the business better. We help clients sort their inventions into what should be filed, what should be kept confidential, and what is not worth protecting at all, so the patent budget goes where it earns its keep.
Who We Work With
Our patent clients range from independent developers with a single patentable idea to startups building their first portfolio to funded companies whose investors expect a coherent IP position before the next round. Early-stage companies often need help prioritizing: which inventions to file on now, which can wait for a provisional, and how to sequence filings against fundraising and launch dates. More established companies tend to need portfolio management — keeping continuations alive, evaluating competitor filings, and aligning the portfolio with where the product is going rather than where it has been.
Drafted by an Engineer, Prosecuted by an Attorney
FullStack Law's founder is a USPTO-registered patent attorney who also builds software professionally. That background changes how applications get written. Invention disclosure meetings move quickly because your engineers do not have to translate their architecture into lay terms. Claims are grounded in how the system actually works — the data flow, the model pipeline, the technical decisions that distinguish your approach — which matters both for § 101 eligibility and for drafting claims a competitor cannot easily design around. Patent work for software companies goes better when the person writing the claims can read the code.
How We Help
- Software patent prosecution
- AI/ML patent strategy
- Patentability analysis
- Patent application drafting and prosecution
- Patent portfolio development
Frequently Asked Questions
Can software still be patented after Alice v. CLS Bank?
Yes. Alice raised the bar for software patent eligibility under 35 U.S.C. § 101, but software inventions are granted patents every week. The decisive factor is usually how the application is drafted: claims framed as a specific technical solution to a technical problem — an improvement to how a computer system functions — fare far better than claims that read like a business method performed on a generic computer.
How long does it take to get a software patent?
Most utility applications take roughly two to four years from filing to grant, depending on the USPTO art unit and how many office actions the application receives. Options such as prioritized examination can shorten the timeline for an additional fee. A provisional application can secure a filing date much sooner while the full application is prepared.
Should I file a provisional application first?
Often, yes. A provisional application secures a priority date at lower cost and gives you twelve months to file the non-provisional, which can align with fundraising or launch timing. The caveat: a provisional only protects what it actually describes, so a thin provisional can create a false sense of security. We draft provisionals with enough technical depth to support the claims you will eventually need.
Ready to Protect Your Innovation?
Schedule a confidential consultation to discuss your intellectual property needs.