Navigating The 2026 IP Minefield: From AI Authorship To The Federal Circuit's Section 101

As we move further into 2026, the past rules are no longer just evolving, they are moving in different directions. For innovators and business owners, knowing the difference between how patents are examined and how their enforceability is now the difference between a valuable asset and a costly legal rejection.

Cohen IP has been tracking the changes in real-time to ensure that our patent drafting of the specification and claims of our clients' inventions remain strong for USPTO allowance.

The Section 101 Divide: USPTO vs. The Federal Circuit

One of the most significant developments of 2026 is the growing "deliberate split" in patent eligibility. While the USPTO's Desjardins framework encourages examiners to focus on practical applications, the U.S. Court of Appeals for the Federal Circuit remains highly skeptical.

In the recent Federal Circuit decision of Recentive Analytics, Inc. v. Fox Corp. (April 18, 2025), it reinforced a strict message for artificial intelligence and software: applying generic techniques to new data without a specific technological improvement to the computer itself remains ineligible under Section 101. This highlights why simply having a "good idea" for an AI tool isn't enough, you need a utility patent strategy that defines the means, not just the ends.

The Human Authorship Mandate

The question of machine vs. human remains a primary battleground. While AI is a powerful tool, it cannot be an "inventor." As Michael N. Cohen, founder of Cohen IP Law Group, recently shared in Super Lawyers:

"Under U.S. law, IP protection resides with a human being, not AI... while AI can be used as a tool, it cannot be the sole inventor."

This human requirement is being tested in the courts. In 2026, the U.S. Department of Justice urged the Supreme Court to reject pending petitions challenging the human-authorship requirement. For creators, this means you must be able to prove your human "creative spark" to secure copyright protections or patents.

Trade Secrets: The New "Reasonable Measures"

As trade secret law adapts to AI, courts are demanding more "particularity" than ever before. A recent Seventh Circuit case of NEXT Payment Sols., Inc. v. CLEAResult Consulting, Inc., No. 24-1377 (7th Cir. Jan. 13, 2026), the court affirmed this notion. In its January 2026 decision, the court affirmed that software plaintiffs must identify "specific and concrete" trade secrets rather than relying on functional, user-visible descriptions.

The "What" vs. "How" Distinction

The Seventh Circuit drew a bright line that every software innovator must understand:

• The "Whats": Functional descriptions of what a program does (e.g., "manages inventory" or "sends notifications") generally do not qualify as trade secrets because they are apparent to any user.
• The "Hows": Protectable secrets must consist of the non-obvious, non-ascertainable methodologies such as specific algorithms, source code, or unique architectures that drive those functions.

Strategic Steps for 2026

1. Avoid "Ends-Not-Means" Claims: Ensure your patent applications describe the technical improvement to the system, not just the desired outcome.
2. Audit Your AI Inputs: With the fair use debate for training data reaching an inflection point in 2026 appellate courts, now is the time to perform a Patent and Trademark Clearance to avoid secondary liability.
3. Prepare for Reexams: As discretionary denials make Inter Partes Review less predictable, the USPTO Reexamination is becoming the validity tool of choice for 2026.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.