Only humans invent, and AI counts as a tool
Name every human who conceived the invention and no one else, because getting this wrong can invalidate the patent.
Lesson 5 of 8 · 3 min
Inventing means conceiving
Inventorship turns on one mental act. Conception, the forming of the idea in the inventor's mind, is "the touchstone of inventorship." It means "a definite and permanent idea of the complete and operative invention" (Burroughs Wellcome, quoted in 90 FR 54636).
That definition rules out a lot of people who feel like inventors. In our judgment, a manager who funded the work, a colleague who built the prototype to spec, and a founder who set the goal are not inventors for those reasons alone. The question is who supplied the idea that the claims describe. Claims are the numbered statements that define what a patent covers.
When several people invent together
Joint inventors need not work together, and they need not contribute equally or to every claim (35 U.S.C. § 116). That is a low bar in some ways, but it has a floor. Pannu requires a significant contribution, one "not insignificant in quality," and more than explaining the state of the art.
In our judgment, inventorship can shift as claims change, so you should revisit the inventor list whenever the claims are amended, because someone whose contribution dropped out of the claims may no longer belong on it, and someone whose idea was added may now need to be there.
Only natural persons qualify
An inventor must be a natural person, meaning a human being (Thaler v. Vidal; MPEP 2109). A company cannot be an inventor, and neither can software. You can use tools of any kind along the way, but the inventors named must be people who conceived what is claimed.
Errors can be corrected, within limits
Mistakes in the inventor list can be fixed during prosecution, the back-and-forth with the Office, and after the patent issues (35 U.S.C. § 116; 35 U.S.C. § 256). Correction is a safety net, not a plan. The dated section below shows how serious an uncorrected error can be.
In our judgment, a simple record helps: note who came up with each key feature and when. If you use AI tools, note what you asked for and what you decided, so you can show the human conception later.
Timeless wisdom
Patent law asks a human question: who had the complete idea? Conception is "the touchstone of inventorship", and only natural persons can be inventors (Thaler v. Vidal). Each new tool, from the slide rule to the language model, invites the same confusion, but in our judgment the answer does not change with the tool. Name everyone who conceived the claimed invention and no one else, then correct errors as the statute allows.
What's current
As of November 6, 2026
The USPTO's Revised Inventorship Guidance, published November 28, 2025, rescinds the February 2024 guidance in its entirety. It says "There is no separate or modified standard for AI-assisted inventions," that AI systems "remain tools," and that Pannu applies only among multiple natural persons.
Fortress Iron v. Digger Specialties (April 2, 2026, precedential) held "a patent which incorrectly lists its inventor(s) and cannot be corrected according to law is invalid."
What happens if no human conceived the invention is unresolved. Thaler left it open, and no court has tested the notice.
Abroad, the paperwork differs. T 528/25 (February 5, 2026) accepts designation for AI-developed inventions at the European Patent Office in principle, but rejected a form saying the AI system DABUS conceived the invention.
Key takeaways
- Conception decides inventorship, not funding, effort or job title.
- Only natural persons can be named as inventors.
- Wrong inventorship that cannot be corrected can invalidate a patent.
- What happens if no human conceived an invention is still unresolved.
Check your understanding
Sources
The Academy is general education, not legal advice, and reading it doesn't create an attorney-client relationship. Patent law and fees change, so check the linked sources and have a registered patent attorney or agent review your situation before you file. Obsidyan sells patent software, including AI drafting tools, so weigh what these lessons say about AI tools with that in mind.