Manufacturers are rapidly embracing artificial intelligence to spur product design and development. But they’ll need to avoid giving AI credit as an inventor when patenting their innovations.

The U.S. Patent and Trademark Office (USPTO) recently issued revised guidance on its treatment of patent applications for AI-assisted inventions. The bottom line: No matter how sophisticated it may be, an artificial intelligence system cannot be named as an inventor or joint inventor on a patent application.

Only “natural persons”—i.e., human beings—can be credited with an invention, the guidance said, and patent seekers should expect a rejection under federal code for “all claims in any application that lists an AI system or other non-natural person as an inventor or joint inventor.”

In essence, AI should be treated like any other piece of laboratory equipment, computer software, research database, or other tool that assists in the inventive process.

A Change of Course

The new guidance—issued on Nov. 26—represents something of a reversal of course for the USPTO. In early 2024, the agency suggested that patent applicants may need to apply a series of factors laid out in Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed. Cir. 1998), to determine if artificial intelligence made such a significant contribution to an innovation that it should be credited as a joint inventor.

In its November release, the USPTO said it was fully rescinding the previous guidance and clarifying that Pannu factors only apply when determining whether multiple natural persons qualify as joint inventors. “When multiple natural persons are involved in creating an invention with AI assistance,” the guidance said, “the traditional joint inventorship principles apply, including the Pannu factors to determine whether each person qualifies as a joint inventor.”

For manufacturers, the new guidance should clear up confusion regarding the treatment of AI in a patent application—a critical issue given the growing ubiquity of AI in the manufacturing process. Already, more than half of manufacturers use AI in product development and other processes, and more than 80 percent say AI technology will be essential to grow and maintain their businesses by the end of the decade, according to recent data from the National Association of Manufacturers.

Practical Steps

In the wake of the USPTO’s guidance, business leaders and in-house counsel may take a few practical steps to help avoid AI-related snags during the patent application process. They should remember:

• Only Humans Need Apply. Everyone listed on the invention disclosure form should be a human being. This applies whether the innovation has one or multiple inventors or if the product was conceived outside the United States.
• Document Early and Often. Manufacturers should take steps to record how people conceived of an invention. This includes documenting when they first thought of an innovation and how and when they made key technical choices.
• Retain AI Records. Keep AI prompts and outputs, and document how humans edited, selected, or applied artificial intelligence instructions or recommendations. This will also be helpful if a third party later challenges the patent.
• Check Policies and Training. Companies should have standards in place for documenting the invention process, as well as training programs to help employees clearly explain their contributions.

The USPTO guidance makes clear that AI is a powerful tool, but it’s not an inventor—at least not yet. As manufacturers continue to integrate artificial intelligence into research and development, they will need to stay disciplined about documenting the human role in their inventions. Doing so could help ease the path to a patent and may help fend off litigation down the road.