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The United States Patent and Trademark Office (USPTO) released new guidance on inventorship for AI-assisted inventions, superseding its previous framework.  The update clarifies how inventorship should be determined when artificial intelligence (AI) systems are involved in the inventive process.

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Almost every organization is pushing its employees to use AI whenever and wherever possible.  Research and development teams are undoubtedly using AI to facilitate innovation.  A year or two ago AI-assisted inventing may have been rare.  Now it might be integral to a large portion of innovation.

The USPTO’s February 2024 guidance seemed to recognize that inventors would interact with AI as if it were another human being – bouncing off ideas and iterating on concepts until something concrete resulted.  The prior guidance provided instructions for examiners and stakeholders on how to determine whether the human contribution to an innovation was significant enough to qualify for a patent when AI also contributed.

The USPTO’s latest guidance, published on November 28, 2025, rescinds the prior guidance.  In many ways, the new guidance simplifies the analysis, but it might also call into question inventorship of inventions that are or were created with the aid of AI.  According to the new guidance, inventorship is determined by “conception.”  Conception is defined as the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention.  Complete and operative invention seems to be the critical aspect of the new guidance and, in at least in some cases, inventors might not have a definite idea of the complete and operative invention until after iteratively interacting with an AI tool.

The new guidance distinguishes between a single human inventor creating an invention with the assistance of AI (applying the “conception” standard) and situations where “multiple natural persons are involved in creating an invention with AI assistance.”  Where there are multiple human inventors are involved, “traditional joint inventorship principles apply,” including the use of the <em>Pannu</em> factors, as detailed in the now-rescinded February 2024 guidance.

To establish inventorship, a single inventor must solely conceive of the invention, while a group of joint inventors each only have to show a significant contribution “measured against the dimension of the full invention.”

How this seemingly dual standard is reconciled by the Office and the courts remains to be seen.

Consistent with Federal Circuit precedent, only natural persons can be named as inventors or joint inventors on patent applications.  AI systems, regardless of how they are used or their sophistication, are considered tools—not inventors.

While not a binding court decision or legislation, the November 28, 2025, guidance indicates how examiners at the USPTO will analyze inventions created with the assistance of AI.  First, AI tools cannot be named as an inventor.  Second, patent protection is available for inventions where a natural person has conceived the invention.  Third, the use of AI tools in the inventive process does not eliminate the possibility of obtaining patent rights.  However, at least under the new guidance, an inventor must have formed a definitive idea of the complete and operative idea of the invention, presumably prior to interacting with an AI tool.  So, while we may have new guidance, we might not have new clarity and will likely see this issue play out in future court cases with litigants arguing either approach depending on which best supports their position – trying to maintain patent validity or attacking patent validity.

For patent applicants, here’s a recap and some tips:

To comply with the new guidance, ensure that only natural persons who contributed to the conception of the invention are named as inventors.  It is possible, though, that the courts might take a broader view of inventorship, such as the view provided in prior guidance.

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Do not list AI systems or other non-natural persons.

Maintain clear records of the inventive process, especially when AI tools are used, to demonstrate the human inventor’s role in conception.

Keep up with potential future changes and differences in the law.  Most countries outside the U.S. follow similar rules, but South Africa issued a patent naming an AI tool as an inventor.

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Please reach out to your Michael Best attorney with any questions around this new guidance from USPTO, or other related concerns.

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New Guidance on AI-Assisted Inventorship

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