by Dennis Crouch

A few years ago the USPTO created an AI-patent classifier that identifies AI related patent applications.  I used that classifier to update activity through 2026. No surprise, AI application receive substantially more 101 eligibility rejections than their non-AI counterparts. An example - among applications whose first office action came in 2025, 42% of those containing AI have so far drawn a § 101 rejection, against 6.9% of those without.  The chart below shows no difference between the two categories for obviousness rejections, both of which hover close to 80%.

As you can see from the chart, the pre-COVID Revised Patent Subject Matter Eligibility Guidance cut the AI §101 rate about in half.  By 2025 that reduction has essentially disappeared. Whereas the eligibility rejection rate in non-AI applications  has not risen. From this data, I cannot tell the extent that the change is tied to changes by applicants in what is being filed or instead changes at the USPTO.