AI, Inventorship, and Why Human Creativity Still Rules

Today, we’re diving into a significant development in intellectual property law that’s making waves across the intellectual property sector. On November 28, 2025, the USPTO published new guidance on inventorship for AI-assisted inventions, and it’s a big shift from what we saw in early 2024. The main headline is simple but powerful: there will be no separate inventorship standard for AI-assisted inventions. The same legal standard that applies to traditional inventions applies here. And consistent with long-standing case law, only natural persons, that is to say human beings, can be listed as inventors. 

Read the full article

• USPTO Replaces AI Inventorship Guidance

About the authors

• Alex Wharton
• Ben Bourke
• Chris Mammen

Transcript

Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

With a focus on innovation, collaboration and client service. We are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.

Host 1

Welcome back to Womble Perspectives, where we’re diving into a significant development in intellectual property law that’s making waves across the intellectual property sector. On November 28, 2025, the USPTO published new guidance on inventorship for AI-assisted inventions, and it’s a big shift from what we saw in early 2024.

Host 2

It is. And the main headline is simple but powerful: there will be no separate inventorship standard for AI-assisted inventions. The same legal standard that applies to traditional inventions applies here. And consistent with long-standing case law, only natural persons, that is to say human beings, can be listed as inventors. AI systems, whether generative AI or other computational models, are explicitly treated as tools, just like lab equipment or software.

Host 1

So, what does that mean for inventors and companies using AI? It all comes down to the concept of “conception.” Under U.S. patent law, conception is defined as the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention. For AI-assisted inventions, the question becomes: did the human inventor’s mental conception, not just oversight or direction, produce the claimed invention?

Host 2

And here’s where the new guidance really changes things. The USPTO has moved away from the prior administration’s reliance on the Pannu v. Iolab Corp. three-factor test for “significant contribution” in single-inventor cases. That test now applies only when multiple human inventors are involved. AI cannot be a joint inventor, so the focus is squarely on whether a human conceived the invention.

Host 1

The guidance also leans heavily on classic precedent like Burroughs Wellcome Co. v. Barr Labs., emphasizing that inventorship analysis will remain highly fact-intensive. Examiners and courts will look at whether the inventor can describe the invention with particularity. That could get tricky when AI plays a big role in generating outputs, especially if companies don’t fully understand how their AI models arrive at certain solutions.

Host 2:

And Director John Squires has made it clear that novelty and inventorship will depend on how applicants and litigators contextualize the human inventor’s involvement. If you can show a highly specific description of how the AI model arrived at the claimed aspect, and how the human inventor shaped that process, you’re in a much stronger position. This means companies need to vigilantly supervise AI systems and document how they adapt and produce outputs.

Host 1:

From a practical standpoint, AI-assisted inventions are still patentable. But companies need to be proactive, and documenting human contributions is critical. Internal invention disclosure procedures should now require researchers to explain how AI was used, what prompts or models were involved, and how the human inventor refined AI-generated material into the final conception.

Host 2:

And let’s talk about litigation risk. Some experts believe this new guidance could lead to more disputes over inventorship. Under the old Pannu-based approach, practitioners had a clearer path: if a human made a sufficient inventive contribution, they could be named as an inventor. Now, with a renewed focus on conception, there’s more room for interpretation. And more potential for courtroom battles.

Host 1:

So what’s the bottom line? AI is transforming innovation, but the law still centers on human creativity. Companies using AI in R&D should update their processes, train teams to capture the human role in conception, and prepare for heightened scrutiny in patent prosecution and litigation. It’s not just good practice, it could make or break a patent.

Host 2:

That’s all for today’s episode of Womble Perspectives. If you’re working with AI in your innovation pipeline, now is the time to revisit your IP strategy. Thanks for listening, and stay tuned for more insights on law, technology, and the future of innovation.

Thank you for listening to Womble Perspectives. If you want to learn more about the topics discussed in this episode, please visit The Show Notes, where you can find links to related resources mentioned today. The Show Notes also have more information about our attorneys who provided today's insights, including ways to reach out to them.

Don't forget to subscribe via your podcast player of choice so that you never miss an episode. Thank you again for listening.