SUMMARY The U.S. Patent and Trademark Office released new guidance clarifying that AI cannot be listed as an inventor on patents. Only humans can be inventors, regardless of how much AI contributed to creating the invention. AI systems are treated as tools like laboratory equipment or software. The guidance abandons the previous approach that incorrectly applied joint inventorship tests to AI-assisted inventions, establishing that standard inventorship rules apply whether AI was used or not.
The U.S. Patent and Trademark Office (USPTO) just released new guidance that fundamentally changes how it evaluates patent applications involving artificial intelligence. The agency is replacing its February 2024 guidance with a simpler, clearer approach.
AI cannot be listed as an inventor on a patent. Period. Only humans can be inventors, no matter how sophisticated the AI system is or how much it contributed to creating the invention.
As companies increasingly use AI tools like ChatGPT, image generators and specialized research AI to help develop new products and technologies, questions have arisen about who owns these inventions. This guidance makes clear that AI systems are treated as tools, similar to laboratory equipment or computer software, not as creative contributors.
The USPTO clarified several important points:
The same inventorship standards apply whether you used AI or not. There’s no special test or modified rules for AI-assisted inventions.
When determining who invented something, the critical question is “conception.” Did a human have a complete mental picture of the invention? The test is whether the person understood all aspects of the claimed invention well enough that only routine work would be needed to build it.
If one person develops an invention with AI assistance, the question is simply whether that person conceived the invention using traditional standards. The AI is just a tool they used.
If multiple people work together using AI, standard joint inventorship rules apply. Each person must make a significant contribution to conceiving the invention or reducing it to practice.
For businesses and inventors using AI tools, this means you need to document the human creative process. Show that humans conceived the key inventive concepts, even if AI helped generate options, run simulations or analyze data.
Foreign patent applications that list AI as an inventor won’t be accepted as the basis for priority claims in the U.S. If a foreign application names both humans and AI as co-inventors, only the human inventors should be listed when filing in the United States.
The previous 2024 guidance tried to apply a multi-factor legal test (the “Pannu factors“) designed for determining joint human inventorship to situations involving AI. The USPTO now acknowledges this approach didn’t make sense, since AI systems aren’t people and can’t be joint inventors in the first place.
This guidance reflects a clear policy choice: patent law rewards human ingenuity. As AI becomes more powerful and autonomous, maintaining this human-centered approach may face challenges, but for now, the USPTO has drawn a bright line. If you want patent protection, a human must be the inventor.
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