### AI Can Help Invent, But Can’t Be an Inventor: Unpacking the USPTO’s New Guidance

For years, the world of innovation has been wrestling with a ghost in the machine: if an AI creates something novel, who gets the credit? The question isn’t just philosophical; it cuts to the core of intellectual property law. Now, the United States Patent and Trademark Office (USPTO) has provided a landmark answer, offering clarity that could shape the future of invention.

In new guidance issued in February 2024, the USPTO made its position clear: Artificial Intelligence systems cannot be named as inventors on a patent. However, in a crucial clarification, the agency also stated that an invention created with the help of AI is not automatically unpatentable.

The distinction is subtle but profound. It means that while the AI itself lacks the legal standing to be an “inventor,” the human who used the AI can be.

#### The Human at the Helm

The core of the new guidance revolves around the concept of “significant contribution.” To be listed as an inventor on a patent for an AI-assisted invention, a human must have contributed significantly to the “conception” of the invention. The USPTO is maintaining the long-held legal standard that inventorship is a human endeavor.

So, what qualifies as a “significant contribution”? The guidance lays out several key factors:

* **Constructing the Prompt:** A person who designs a specific prompt that steers the AI toward a particular solution could be seen as a significant contributor.
* **Recognizing the Output:** Simply running an AI is not enough. A human must recognize the utility and novelty of the AI’s output and appreciate its potential as an invention.
* **Making a Key Decision:** If the AI generates multiple options, the human who makes a critical decision to select one path over another, or who refines the output, is contributing to the conception.
* **Developing the Idea:** Taking a raw output from an AI and developing it into a practical and workable invention is a clear sign of human inventorship.

Conversely, the USPTO notes that merely owning or overseeing an AI system, or simply presenting it with a general problem without specific guidance, does not rise to the level of inventorship.

#### A Response to a Growing Challenge

This new framework is not happening in a vacuum. It’s a direct response to legal challenges, most famously the case of Stephen Thaler and his AI system, DABUS (“Device for the Autonomous Bootstrapping of Unified Sentience”). Thaler attempted to have DABUS named as the sole inventor on patents for a new type of food container and a flashing light beacon.

Courts in the United States, the United Kingdom, and the European Union have consistently rejected these applications, ruling that under current law, an inventor must be a natural person. The USPTO’s guidance codifies this stance while creating a practical path forward for the countless innovators who are already using AI as a powerful tool.

#### What This Means for Innovators and Companies

The message from the USPTO is clear: embrace AI as a partner in innovation, but meticulously document the human element. For inventors, startups, and large corporations alike, this has immediate implications:

1. **Documentation is King:** Keep detailed records of how AI was used in the inventive process. This includes the prompts given, the outputs received, and, most importantly, the human insights, decisions, and refinements made along the way.
2. **AI is a Tool, Not a Teammate:** Think of generative AI as an incredibly advanced lab assistant or a super-powered brainstorming partner. It can perform tasks and generate ideas, but the strategic direction and the “eureka” moment of recognizing an invention must still be human-driven.
3. **Clarity for the Future:** This guidance provides a degree of certainty for companies investing in AI-driven R&D. They can now proceed with more confidence, knowing a pathway to patent protection exists, as long as they ensure and document significant human involvement.

The USPTO has effectively drawn a line in the sand. It acknowledges the transformative power of artificial intelligence in the creative process while reaffirming the central role of human ingenuity in the eyes of the law. The machine can help build the future, but a human must still be the architect.