A Pivotal Moment for AI and Patents
Inventorship, Eligibility, and Beyond
Artificial intelligence systems are helping innovators go further and faster, but patent applications still require human inventors. Ralph Cunningham discovers what this means for patent filings and examinations.
Artificial intelligence (AI) systems have unleashed a wave of creativity, ingenuity and enhanced efficiency that continue to upturn every corner of the economy.
In areas such as drug discovery, electronics and communications, individuals can use AI tools to come up with more detailed inventions, without the input of large teams.
Practitioners and in-house counsel will discuss what this means for inventors and their attempts to secure rights over their innovation in a patent series session on AI and Patents: Inventorship, Eligibility, and Beyond (Wednesday, May 6, 10:30 am – 11:20 am).
Topics set to be covered during the discussion include the status of AI-generated patents and whether they can avail of any other kind of protection and marrying the role of a human inventor and their contribution to an AI-enabled invention. The session will also explore how patent offices use agentic AI in prior art searches when a machine has been involved in a patent application.
“We believe the panel is being conducted at a pivotal moment when the increased usage of AI blurs the boundaries between “human-driven” and “machine-led” innovation,” says moderator Mamta Rani, Co-Managing Partner at Inttl Advocare (India).
“The fundamental question is how innovation can truly be identified, protected, and rewarded, in an era where AI has pervaded all aspects of R&D,” she adds.
Ms. Rani says the panelists—Karen Fraser, Principal Director at Murgitroyd & Company (UK); Gustavo Sartori, Partner and Co-Head of Patent Prosecution at Daniel Law (Brazil); Susan McGahan, Assistant Vice President-Senior Legal Counsel at AT&T (USA); and Kathleen Cooney-Porter, Senior Legal Advisor at the United States Patent and Trademark Office (USPTO) (USA)—will also consider what these technological developments mean for patent registration.
“If one were to consider AI-enabled inventions as the new normal, then should the conventional goalposts of patentability, inventive step, obviousness, sufficiency, and disclosure also shift?” she asks.
"We believe the panel is being conducted at a pivotal moment when the increased usage of AI blurs the boundaries between “human-driven” and “machine-led” innovating."
- Mamta Rani | Inttl Advocare (India)
Filing Approach
Even if most countries do not allow patent applications to list AI as the inventor, they are still debating the impact of AI-enabled inventions on the future of patent systems.
In February 2024, the USPTO’s Inventorship Guidance for AI-Assisted Inventions stated that AI systems and other non-natural persons could not be listed as inventors in U.S. patent applications and an entity that was not a natural person could be listed as an inventor or co-inventor.
This guidance remains the position of the USPTO, though the pending Patent Eligibility Restoration Act of 2025 would narrow the definition of an abstract idea, potentially making it easier to patent AI inventions.
UK Guidance Withdrawn
Things are not as clear-cut as they used to be in the UK. The UK Supreme Court’s landmark decision in the Emotional Perception AI case in 2026 saw the UK Intellectual Property Office withdraw its guidance that an AI system could not be an inventor because it was not a natural person.
At the same time, the case has returned to the Office to be examined again on the basis of the two-stage approach set out in the judgement.
“This has fundamentally reshaped the legal framework for patenting computer-implemented inventions, particularly those involving artificial intelligence,” says Ms. Fraser.
“The court has abandoned the long-standing Aerotel Test, aligning the UK with the European Patent Office's (EPO) approach and opening a clearer path to patentability for AI and software innovations,” Ms. Fraser adds. “This decision brings the UK into closer alignment with the EPO, allowing companies to adopt a more unified patent strategy across the UK and Europe.”
"The court has abandoned the long-standing Aerotel test, aligning the UK with the European Patent Office's approach and opening a clearer path to patentability for AI and software innovations."
-Karen Fraser | Murgitroyd & Company (UK)
Brazil and India
The Brazilian Patent and Trademark Office has released draft examination guidelines for AI-related inventions, says Mr. Sartori, with the final guidelines expected in 2026.
India’s Guidelines on the Examination of Computer-Related Inventions confirm that as AI cannot qualify as an inventor under Section 6 of the Patents Act, AI-generated patents with little or no human intervention cannot be patents.
The Indian courts have yet to issue a decision on the question of whether AI should be recognized as an inventor.
Where AI-enabled patent registration around the world continues to require a human inventor, innovators should take a two-part approach to establishing their contribution, says Ms. McGahan.
“Identify, at claim-element granularity, the human-originated insights that constitute conception and document your contribution to any AI systems, such as iteration logs, prompt histories, model/training decisions, claim mapping, lab notebooks, design change logs, test data and analytics training logs,” Ms. McGahan says.
