If you've been using AI tools to develop new products, you've probably wondered whether you can still patent the results. The Patent Office just gave you a clearer answer.
On November 28, 2025, the USPTO published revised guidance that rescinds the Biden administration's approach to AI-assisted inventions. The old rules required inventors to prove they made a "significant contribution" to any invention that involved AI. The new rules are simpler: AI is a tool. If you conceived the invention, you're the inventor.
This matters if you're building anything that touches machine learning, generative AI, or automated design. Your next funding round will include IP diligence. Your acquirer will want to know your patents are defensible. And your competitors are paying attention to the same guidance you are.
What Changed
The Old Rules (February 2024)
The previous guidance applied something called the "Pannu factors" to AI-assisted inventions. These factors come from a 1998 Federal Circuit case about joint inventorship between multiple people. The USPTO tried to extend this test to situations where a single inventor used an AI tool.
Under the old approach, if you used AI in your development process, you had to demonstrate that you:
- Contributed in some significant manner to the conception of the invention
- Made a contribution that wasn't insignificant compared to the full invention
- Did more than merely explain well-known concepts to the AI
This created uncertainty. How much human input is "significant"? If you prompt a generative AI system and it produces a novel solution, did you conceive the invention or did the AI? Patent examiners had no bright-line test to apply.
The New Rules (November 2025)
The revised guidance scraps that framework entirely. Here's what it says:
AI is a tool. The guidance explicitly states that AI systems are "analogous to laboratory equipment, computer software, research databases, or any other tool that assists in the inventive process." No special analysis required.
Pannu factors don't apply to AI. Those joint inventorship tests only determine whether multiple humans qualify as co-inventors. They were never meant to evaluate whether a human's contribution was "significant enough" compared to a machine.
One standard for all inventions. Whether you used AI, a calculator, or a pencil, the same inventorship test applies. Did you have "a definite and permanent idea of the complete and operative invention"? If yes, you're the inventor.
Why This Matters
The Pro-Patent Shift
This guidance implements the Trump administration's executive order on AI, which directed agencies to remove barriers to innovation. The USPTO is signaling that AI-assisted inventions deserve the same protection as any other invention.
For companies building AI products, this reduces a layer of uncertainty. You don't need to document how much the AI contributed versus how much you contributed. You need to document that you, a human, conceived the invention.
The Court Question
There's a catch. USPTO guidance binds patent examiners reviewing applications. It doesn't bind courts reviewing issued patents.
No court has yet decided whether an AI-generated invention can be validly patented if the human's contribution was minimal. The Federal Circuit's 2022 decision in Thaler v. Vidal held that AI systems cannot be named as inventors. But that case involved someone trying to list an AI as the sole inventor. It didn't address the scenario where a human uses AI as a tool and claims inventorship.
The guidance acknowledges an unresolved issue under 35 U.S.C. § 102(f): if an AI generates information essential to the invention, and the human simply describes what the AI produced, is that human truly the inventor? The statute has been applied to derivation between natural persons, not derivation from machines. Courts will eventually weigh in.
What About Design Patents?
The guidance applies to utility patents, design patents, and plant patents. But design patents present a particular challenge.
AI design tools can generate complex ornamental features with minimal human input. What level of human involvement satisfies inventorship? If you tell an AI to "create a modern chair design" and it produces something novel, are you the inventor?
The guidance doesn't answer this directly. Companies filing design patents for AI-generated designs should document their creative direction and selection process carefully.
What It Means for Your IP Strategy
For Startups and Growth Companies
Your patent portfolio is a line item in every acquisition and funding diligence process. Acquirers and investors will ask: Are these patents valid? Could they be challenged on inventorship grounds?
The new guidance reduces one attack vector. Under the old rules, a competitor could argue that your AI did the inventing and you just described what it produced. That argument is weaker now, but it hasn't disappeared entirely. Courts could still find that certain AI-heavy inventions lack proper human conception.
The practical response: keep invention records. Document your conception of the problem, your direction to the AI, your evaluation of its outputs, and your refinement of the solution. This creates a paper trail showing human conception, which satisfies the USPTO guidance and provides evidence if litigation arises.
For Established Companies
If you filed patents under the February 2024 guidance, they're not automatically invalid. The old guidance raised the bar for examiners, but patents that cleared that bar should be at least as defensible under the new standard.
What you should review: any pending applications where inventorship was questioned or where you provided extensive documentation of human contribution. That documentation remains valuable, but you may not need as much of it for new applications.
For AI Tool Providers
If you provide AI tools that customers use to develop inventions, this guidance clarifies that your tool is just that: a tool. You're not a co-inventor. Your customers can patent their inventions without naming you or your AI system.
This is consistent with how other tools work. A microscope manufacturer isn't a co-inventor on discoveries made using its microscopes. The same logic now clearly applies to AI.
Practical Takeaways
Update your invention disclosure process. If your forms ask inventors to document AI involvement under the old "significant contribution" framework, revise them. Focus on capturing conception: when did the inventor have a definite idea of the solution?
Brief your R&D teams. Engineers using AI tools should understand they can still be named as inventors. The key is that they directed the AI toward solving a specific problem and recognized the solution when the AI produced it.
Review pending applications. If you have applications where examiners questioned inventorship due to AI involvement, the new guidance may provide grounds to respond. Check with your patent counsel about whether to file updated arguments.
Document creative direction for design patents. If you're filing design patents for AI-generated designs, keep records of the prompts, constraints, and selection criteria you applied. This supports your inventorship claim if challenged.
Prepare for diligence questions. Your next investor or acquirer will ask about your AI-assisted patents. Have a clear answer: here's how we documented human conception, here's why our patents are valid under current USPTO guidance.
Watch for court decisions. The guidance is binding on examiners but not courts. Any Federal Circuit decision on AI-assisted inventorship could reshape the landscape. Keep your IP counsel informed of ongoing litigation in this space.
What We're Watching
Litigation on § 102(f) derivation: Will courts extend the derivation doctrine to cover inventions "derived" from AI outputs?
Design patent challenges: The first major dispute over an AI-generated design patent will test the limits of the guidance.
International divergence: The UK, Australia, and EU have taken varying positions on AI inventorship. Companies filing internationally should track these differences.
Congressional action: Legislation has been proposed to address AI inventorship directly. Any statutory change would supersede USPTO guidance.
The Patent Office has clarified the rules for now. AI is a tool, and the humans who use it can patent their inventions. But the courts haven't spoken yet, and prudent companies will document their conception process regardless of which way the guidance blows. Companies developing AI/ML products should treat clear invention records as a non-negotiable part of their IP strategy.