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Divergent Patent Law Blog
Commentary on U.S patent prosecution, PTAB practice, Federal Circuit developments, and cross-border patent strategy.


From Abstract Idea to Technical Solution
Executive Summary: Artificial-intelligence inventions are patentable in both the United States and China, but neither jurisdiction protects “AI” as an abstract label or rewards generic use of a known model in a new field. U.S. practice applies the Alice/Mayo eligibility framework, with current USPTO guidance emphasizing the claim as a whole, a specific improvement to technology, and evidence connecting that improvement to the claimed mechanism; properly supported declarations
Brandon Theiss
Aug 1525 min read


From Korean “Technical Ideas” to U.S. “Practical Applications”: § 101 Strategy for Software and AI Patent Applications
Executive Summary: The article explains why Korean software and AI patent applications that appear eligible under Korean law may still face significant obstacles under U.S. patent-eligibility doctrine. Korean law focuses on whether the claimed invention is a “technical idea utilizing laws of nature” and, for software-related inventions, whether software-based information processing is concretely realized using hardware. U.S. law, by contrast, asks whether the claim falls with
Brandon Theiss
Jul 3020 min read


Written for the Skilled Artisan, Read by Everyone: Drafting Patent Applications for Multiple Audiences
Executive Summary: A patent application is legally evaluated through the lens of a person of ordinary skill in the art, but its practical success depends on a much broader audience: patent examiners, continuation counsel, foreign associates and national-phase examiners, judges, opposing counsel, juries, and licensing and business teams. This article argues that the solution is not to write different versions of the invention for different readers, but to develop one coherent
Brandon Theiss
Jul 2021 min read


SMEDs After the USPTO’s 2026 Guidance: Rule 132 Declarations, Corroboration, and the Need for a Court-Ready § 101 Record
Executive Summary: This article argues that Subject Matter Eligibility Declarations (“SMEDs”) can be valuable prosecution tools for building a factual record in response to § 101 rejections, but only if they are used with discipline. A SMED should not ask an inventor or expert to declare that claims are patent eligible; rather, it should provide claim-tethered, corroborated technical facts showing how a person of ordinary skill in the art would understand the specification an
Brandon Theiss
Jul 214 min read


Lean Patent Operations: Jidoka, Automation, and AI in Patent-Prosecution Workflows
Executive Summary Patent prosecution is legal knowledge work, but it is also repeatable process work: new application filings, formalities, assignments, IDS submissions, Office communication processing, allowance, issuance, maintenance fees, foreign filing, and portfolio reporting all depend on accurate information, timely handoffs, reliable controls, and appropriate professional supervision. This white paper argues that patent operations can be improved by applying Lean Six
Brandon Theiss
Jun 2321 min read
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