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Artificial Intelligence and Intellectual Property
Artificial Intelligence and Patents Guidance
by Parneet Hayer
The United States Patent and Trademark Office (USPTO) issued guidance on February 13, 2024, to help patent examiners determine who the correct inventors are for inventions created by humans with the assistance of Artificial Intelligence (AI). The published guidance establishes that inventions created with the assistance of AI may be patentable if at least one person named on the patent is qualified to be an inventor.[1]
The guidance addresses whether or not the person listed as an inventor on the patent has made a significant enough contribution to the invention. The “significant contribution” test has been used for decades and will remain unchanged. Merely recognizing a problem and then using AI to generate a solution is not enough to constitute inventorship. In addition, simply using an AI system to conceive of an invention does not make a person an inventor of that invention.[2] The USPTO uses a set of criteria known at the Pannu Factors to determine if a human has significantly contributed to an AI-assisted invention. Each inventor named on a patent application must satisfy these three Pannu Factors:[3]
- Contributed in some significant manner to the conception or reduction to practice of the invention,
- Made a contribution to the claimed invention that is not insignificant in quality when that contribution is measured against the dimension of the full invention, and
- Did more than merely explain to the real inventors’ well-known concepts and/or the current state of the art.[4]
Failure to meet any of these factors will prevent a person from being named as an inventor or joint inventor.
Currently, the USPTO does not require inventors to disclose the use of AI in the patent prosecution process, except in rare circumstances. A patent examiner will not be looking at whether or not AI significantly contributed to the invention or if AI could meet the requirements for inventorship. Instead, the patent examiner will focus on whether or not at least one human has contributed enough to the invention to meet the requirements to be an inventor on the patent. The invention must also be a process (method), machine, manufacture (product), or composition of matter that is novel (new), useful, and non-obvious to a person skilled in the art (having knowledge and expertise in the relevant field) for it to be patentable. The USPTO will continue to collaborate with international patent offices to develop consistent policies regarding inventions that are created with the assistance of AI.
[1] United States Patent and Trademark Office - An Agency of the Department of Commerce. (2024, February 12). USPTO issues inventorship guidance and examples for AI-Assisted Inventions. https://www.uspto.gov/subscription-center/2024/uspto-issues-inventorship-guidance-and-examples-ai-assisted-inventions
[2] United States Patent and Trademark Office - An Agency of the Department of Commerce. (2024, February 12). USPTO issues inventorship guidance and examples for AI-Assisted Inventions. https://www.uspto.gov/subscription-center/2024/uspto-issues-inventorship-guidance-and-examples-ai-assisted-inventions
[3] Kim, C., Kumar, S., Sked, M., & AI/ET Policy Working Group. (2024, March 5). Inventorship guidance for AI-Assisted Inventions. https://www.uspto.gov/sites/default/files/documents/inventorship-guidance-for-ai-assisted-inventions.pdf
[4] Kim, C., Kumar, S., Sked, M., & AI/ET Policy Working Group. (2024, March 5). Inventorship guidance for AI-Assisted Inventions. https://www.uspto.gov/sites/default/files/documents/inventorship-guidance-for-ai-assisted-inventions.pdf
Artificial Intelligence and Copyright Guidance
by Parneet Hayer
As of February 21, 2025, the United States Copyright Office has released two out of three reports discussing the copyrightability of Artificial Intelligence (AI) generated works. The reports detail the standards and requirements for copyrighting work created with the assistance of AI. The Copyright Office reiterates that copyright protection requires human authorship. Works that incorporate AI-generated material may be copyrightable, but only the parts that are authored by a person can receive protection. Simply inputting a prompt into a generative AI tool is not enough to constitute human authorship. [1]
For a work to be considered one of human authorship, it must be:
- A product of human creativity cannot be solely created by generative AI,
- Original, and
- Fixed in a tangible medium of expression [2]
If a person significantly changes the content that was generated by AI, that portion could receive copyright protection. The determination of copyright protection for works that incorporate AI will be made on a case-by-case basis. The Copyright Office also requires all applicants to disclose any AI-generated content that is included in the work. The Office will continue to release guidance regarding the human authorship requirement as it relates to the use of AI and will provide more information on reviewing registration decisions. The analysis will focus on determining the scope of copyright protection that the work will receive and whether the human authorship requirement has been met.[3] At this time, the Copyright Office does not recommend making any changes to current copyright laws.
[1] United States Copyright Office. (2025, January). Copyright and Artificial Intelligence, part 2. https://copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf
[2] The Federal Register. (2023, March 16). Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence
[3] United States Copyright Office. (2025, January). Copyright and Artificial Intelligence, part 2. https://copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf