Quick Answer: AI-assisted inventions use the same U.S. inventorship standard as other inventions, with only human beings eligible as inventors. [1] Technology companies should document each person's conception of the claimed invention before drafting claims and approving inventor declarations. The USPTO imposes no general AI-use disclosure duty, but information material to patentability can still require disclosure. [2] Patent counsel should assess inventorship, disclosure, and eligibility separately before the company commits to a filing strategy.
Who qualifies as an inventor when AI assists development?
AI-assisted inventorship turns on human conception of the claimed invention. [1] Ask who developed the specific technical solution and how that person's work appears in the proposed claims. Reviewing each contribution is more useful than estimating a percentage of AI involvement.
The USPTO's November 28, 2025 guidance withdrew its February 2024 inventorship guidance in full. [1] It requires a definite and permanent idea of the complete, operative invention, beyond a general goal or research plan. [1]
AI cannot be a joint inventor; traditional joint-inventorship principles still apply among multiple human contributors. [1] Companies using the earlier guidance should have counsel revisit their inventor questionnaires and approval procedures.
For each proposed claim, ask counsel to connect the technical features to the people who conceived them. Revisit that analysis when claims change. A project credit list is a starting point for the inquiry, not an answer to the legal question.
What records should companies keep for AI-assisted inventions?
For AI-assisted inventions, we recommend a claim-focused account of human contributions, AI assistance, and development dates. These are internal documentation recommendations, not a new AI-specific filing requirement in the revised guidance. [1] Keep the process proportionate to the invention.
Consider a hypothetical engineer using AI to compare lower-power sensor designs. Record which arrangement the engineer conceived, what the AI supplied, and when the solution became defined. “AI helped design it” does not answer those questions.
Use this four-part invention-record checklist:
- Human contribution: Identify each person's technical work and its connection to the proposed claims.
- AI contribution: Preserve relevant inputs, outputs, and revisions that explain how the claimed features developed.
- Timeline: Keep dated drawings, code changes, design notes, and test records.
- Claim review: Reassess the inventor list as counsel drafts or amends the claims.
Documentation cannot replace human conception. [1] Resolve uncertainty about who conceived the claimed invention before approving inventor declarations.
Must applicants disclose AI use to the USPTO?
USPTO guidance imposes no general obligation to disclose AI-tool use, but materiality can trigger a disclosure duty. [2, footnote 58] Separate the company's internal review of AI assistance from counsel's decision about what information the Office must receive.
The April 11, 2024 guidance ties AI-use disclosure to materiality under 37 C.F.R. § 1.56(b). [2] The duty of candor continues to apply when AI helps prepare a filing. [2]
First, establish what happened during development and drafting. Then ask counsel to evaluate disclosure obligations using the current human-conception standard. For example, uncertainty about whether a named inventor conceived claimed subject matter should reach counsel before filing.
Review AI-generated technical descriptions, citations, and statements about testing against the team's actual work. Keep inventor approval and technical verification as separate checks. A blanket AI-use statement should not replace a specific review of information that could affect patentability.
How should counsel separate inventorship from patent eligibility?
Inventorship and subject-matter eligibility address separate patent questions in the USPTO's AI guidance. [3] We recommend reviewing both before filing. A documented inventor record should not be treated as proof that the claims satisfy the separate eligibility analysis.
The December 5, 2025 update following Ex parte Desjardins addresses technological improvements under the existing Alice/Mayo analysis. [4] Examiners must assess the whole claim, including the technological advance described in the specification. [4]
Use a three-question pre-filing review:
- Inventorship: Who conceived the subject matter the company intends to claim?
- Disclosure: What known information must counsel evaluate for submission to the USPTO?
- Eligibility: What technical improvement does the specification explain, and how do the claims reflect it?
Alongside that review, examine AI-tool terms and decide what technical information should remain confidential. Start with the invention-disclosure process, while the engineers can explain their work. Leave time to resolve gaps before the filing deadline.
Sources
[1] USPTO. Revised Inventorship Guidance for AI-Assisted Inventions. Federal Register, November 28, 2025. https://www.govinfo.gov/content/pkg/FR-2025-11-28/html/2025-21457.htm
[2] USPTO. Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office. Federal Register, April 11, 2024. See footnote 58 for the general AI-use disclosure statement. https://www.govinfo.gov/content/pkg/FR-2024-04-11/html/2024-07629.htm
[3] USPTO. Artificial Intelligence Resources. Resource collection. https://www.uspto.gov/initiatives/artificial-intelligence/artificial-intelligence-resources
[4] USPTO. USPTO updates subject matter eligibility guidance in the MPEP. December 5, 2025. https://www.uspto.gov/subscription-center/2025/uspto-updates-subject-matter-eligibility-guidance-mpep
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.
