Inventorship in the Age of AI: Notes on the USPTO’s New Patent Guidance

[1]

On November 28, 2025, the United States Patent and Trademark Office (“USPTO”) issued revised examination guidance regarding how patent law applies to inventions created with the assistance of AI, specifically regarding inventorship.[2] The USPTO’s new guidance rescinds the February 2024 guidance in its entirety and replaces it with a revised framework.[3]  The new guidance clarifies how inventorship is determined in patent applications for inventions created with the assistance of AI.[4]

The USPTO bases its guidance on federal court precedent.[5] First, the guidance affirms the 2024 guidance and Federal Circuit precedent in that AI cannot be a named inventor on a patent application.[6] The new guidance holds that only natural persons can be inventors.[7] However, the new guidance abandons the USPTO’s 2024 approach, which relied on a standard typically used in determining when multiple people qualify as joint inventors.[8] Further, the analysis of inventorship, laid out in the new guidance, revolves around conception, which is “the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention.”[9]

In considering conception, the analysis considers whether the person possessed knowledge of all the limitations of the claimed invention and  “turns on the ability of an inventor to describe an invention with particularity.”[10] Without such a description, the USPTO considers the inventor unable to prove conception.[11] This guidance sets the standard for determining inventorship for AI-assisted and non-AI-assisted inventions.[12] The standard for determining inventorship does not differ based on the inventive process; the same standard applies to all inventions.[13] The standard considers AI an instrument used by human inventors.[14] The guidance likens AI to laboratory equipment, computer software, and research databases.[15] An inventor’s use of those instruments, or the aid of others, does not necessitate that those instruments or others become co-inventors.[16] The same standard applies to the use of AI.[17]

The conception standard of inventorship applies to solo inventors.[18] When multiple people contribute to the creation of an invention, the court applies factors established in Pannu v. Iolab Corp.[19] In applying the Pannu factors, each inventor must (1) significantly contribute to the conception or reduction to practice of the invention; (2) make a significant contribution; and (3) more than merely explain to the real inventors well-known concepts.[20] The 2024 guidance applied the Pannu standard to all inventions involving AI assistance, even when only one inventor created the invention.[21] The new guidance limited the application of the Pannu factors to inventions contributed by multiple people.[22] Further, the use of AI does not change the analysis.[23]

The guidance establishes no modified standard for inventions made with the assistance of AI.[24] Also, the guidance does not include guidelines on how to address inventions conceived with the help of AI.[25]

The new guidance will likely have practical implications for how inventors and practitioners approach inventions created with the help of AI.[26] Now, inventors and practitioners may shift the focus from whether the inventor utilized AI to how their own human judgment guided their innovation. Inventors may document their innovative process contemporaneously, capturing their mindset and evaluation to reveal their analytical process separate from AI use. While this revised guidance likely carry practical implications that change the approach of inventors and practitioners, the USPTO’s new guidance does not represent a major change in patent law.[27]

References

[1] Photo by Will Buckner, Silicon Valley USPTO (United States Patent and Trademark Office) Building Logo, San Jose, California, Flickr (Oct. 11, 2018) (CC BY 2.0).

[2] See Blake Brittain, US Patent Office Issues New Guidelines for AI-assisted Inventions, Reuters, https://www.reuters.com/legal/government/us-patent-office-issues-new-guidelines-ai-assisted-inventions-2025-11-26/ (last visited Jan. 2, 2026) (explaining latest USPTO guidance for AI-assistance in patented inventions).

[3] See id.

[4] See U.S. Pat. & Trademarks Off., PTO-P-2025-0014, Revised Inventorship Guidance for AI-Assisted Inventions, (Nov. 28, 2025), https://www.federalregister.gov/documents/2025/11/28/2025-21457/revised-inventorship-guidance-for-ai-assisted-inventions

[5] See id.

[6] See Brittain, supra note 2.

[7] See U.S. Pat. & Trademarks Off., supra note 4.

[8] See Brittain, supra note 2.

[9] See U.S. Pat. & Trademarks Off., supra note 4, at 3; see also Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F. 3d 1223, 1228 (Fed. Cir. 1994).

[10] See U.S. Pat. & Trademarks Off., supra note 4.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] See id. at 3; see also Shatterproof Glass Corp. v. Libby-Owens Ford Co., 758 F.2d 613, 624 (Fed. Cir. 1985).

[17] See U.S. Pat. & Trademarks Off., supra note 4.

[18] See id.

[19] See id.

[20] See Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed. Cir. 1998).

[21] See Brittain, supra note 2.

[22] See U.S. Pat. & Trademarks Off., supra note 4.

[23] See id.

[24] See Brittain, supra note 2.

[25] See id.

[26] See U.S. Pat. & Trademarks Off., supra note 4.

[27] See Brittain, supra note 2