Can you patent your AI? New guidance in Canada and the US for software and AI inventors
Summary
Canada's Federal Court and CIPO reinforced purposive claim construction and a physicality requirement, treating neural-network algorithms as abstract advice unless claims include physical elements or a computing-specific improvement. CIPO signalled that model sophistication or domain-level benefits alone generally will not make AI inventions patentable, but including physical components or showing an implementation-level computing improvement can restore eligibility. The USPTO's August 2025 memo instructed examiners to distinguish claims that 'set forth or describe' judicial exceptions from claims where AI is merely involved and cautioned against overbroad mental-process rejections. A December 2025 USPTO memo encouraged optional Subject Matter Eligibility Declarations (SMEDs) to submit objective technical evidence—performance metrics, implementation details, and claim nexus—to overcome §101 rejections and required examiners to evaluate SMEDs under a preponderance-of-the-evidence standard.
