USPTO's "Kim Memo" Signals a New Era of Growth for AI Patent Eligibility

Client Alert

Date: June 1, 2026 Subject: Artificial Intelligence Patent Eligibility

Strong Tailwinds at the Patent Office: The "Kim Memo" Signals a New Era for AI Entrepreneurs

The restrictive era of Alice Corp. v. CLS Bank is receding. For years, AI entrepreneurs have been caught in a "Catch-22"—building revolutionary technology only to have it labeled an "abstract idea" by the Patent Office. However, the USPTO's recent guidance, issued by Deputy Commissioner Charles Kim (the "Kim Memo"), has fundamentally shifted the landscape, creating the strongest tailwinds for AI patent eligibility we've seen in a decade.

The Great Pivot: From Alice to Kim

While the Alice decision (2014) acted as a filter designed to catch "vague" software claims, the Kim Memo functions as a roadmap for inclusion. It reminds examiners that AI computations often transcend human capability and should not be dismissed as "mental processes."

To understand the shift, consider how the evaluation standard has evolved:

1. Primary Hurdle: Shifted from focusing on finding an "abstract idea" to trigger a rejection (Alice Era) to identifying a "technical improvement" to grant protection (Kim Memo Era).
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3. Examiner Mindset: Evolved from a skeptical view of software as mere "mathematics" to a supportive view of AI as a functional tool with technical character.
4. Threshold for Rejection: Shifted from rejections frequently based on "uncertainty" or close calls to requiring a strict "Preponderance of Evidence" (>50% probability) to sustain a rejection.
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Why This is a Game-Changer for AI Entrepreneurs

The guidance clarifies that AI inventions should be evaluated based on their practical application rather than underlying logic:

1. Massive Scale Architectures: Models processing data volumes that transcend human cognition are now explicitly protected from "mental process" rejections.
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3. Hardware Interplay: AI that optimizes high-density computing (e.g., GPU clusters or immersion cooling systems) is seeing a smoother path to issuance.
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5. Pro-Innovation Presumption: In "close call" cases, examiners are now instructed to lean toward eligibility.
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Official Resource: https://www.uspto.gov/sites/default/files/documents/memo-101-20250804.pdf

Strategic Roadmap: Increasing Probability of Issuance

1. Shift the Narrative to "Technical Solves": Focus your specification on how the AI solves a technical bottleneck (e.g., latency, memory efficiency, or data integrity) rather than just what the user experiences.
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3. Highlight Functional Interlocks: Structure claims to show tight integration between AI logic and the digital environment. The more "connected" the AI is to a specific technical process, the less "abstract" it appears.
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5. Group by "High Priority" Features: Avoid the term "material" in favor of "high priority" when grouping claim limitations to avoid ambiguity in smart contract parsing and align with current enforcement policies.
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7. Invoke the "Preponderance" Standard: If you receive a rejection, hold the examiner to the new standard. If they cannot show it is more likely than not that the claim is ineligible, the rejection should not stand.

Disclaimer: This alert is provided for informational purposes only and does not constitute legal advice. The use of AI tools should always be governed by your organization's internal compliance and security policies.