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ARTICLE · 05 FEBRUARY 2026

Intellectual Property Report

Baker Botts L.L.P.
Baker Botts L.L.P.
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Baker Botts L.L.P.

Baker Botts L.L.P.

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Section 101 eligibility remains one of the most unpredictable and frequently contested areas of U.S. patent practice, particularly for software, artificial intelligence, and machine learning.

United StatesIntellectual Property
Baker Botts
Baker Botts

A New Playbook for § 101? The USPTO's Guidance on Using Technical Evidence
Michael Burger
Section 101 eligibility remains one of the most unpredictable and frequently contested areas of U.S. patent practice, particularly for software, artificial intelligence, and machine learning. USPTO Director John Squires has identified bringing clarity to § 101 as a primary objective of his tenure, emphasizing the need to reduce inconsistent and confusing eligibility determinations that can hinder innovation. In furtherance of that goal, Director Squires issued two memoranda in December 2025 addressing how technical evidence can be used by applicants, and how it must be evaluated by Examiners, in the context of § 101 rejections. For applicants, the guidance provides a practical roadmap for responding to § 101 rejections by linking claim language to technological improvements disclosed in the specification.

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