As you probably know, inventorship in the real world is getting harder to determine due to artificial intelligence (AI) being used by engineers, scientists and others to assist in inventing new systems, materials, biological and chemical products, processes, etc.
Recently, in November 2025, the USPTO issued revised inventorship guidance for AI-Assisted Inventions[1], rescinding its AI inventorship guidance issued February 2024[2]. The issuance and reversal of the USPTO guidance on this issue in a period of less than two years demonstrates that the risk associated with inventorship determinations is elevated in ways that would have been difficult to anticipate five or ten years ago. While, on the one hand, the USPTO guidance was never binding on the courts, the lack of guidance increases the burden on companies to develop and implement protocols to timely document inventorship determinations. It also potentially postpones until patent enforcement, instead of during patent prosecution, rigorous determinations of inventorship.
Mark Lemley, a Stanford Law School professor, and many others have posted comments and articles on this topic, which can be easily found in many forums, even LinkedIn[3]. For example, some very smart and well informed commentors have posited that inventorship can be resolved by determining which humans prepared the AI prompts that resulted in or helped generate various aspects of an invention, while others have pointed out some examples where that analysis is insufficient or possibly incorrect.
But on the ground, company executives, in-house IP counsel and outside IP counsel need a practical way to resolve inventorship and to reduce risk that inventorship determinations will be upended during enforcement of the resulting patents. Thus, this short comment proposes that the challenge is to minimize risk and thereby maximize the odds that your patents will survive litigation that includes an inventorship identification challenge.
I suggest adopting as an axiom that the only worthwhile patents are patents that have been written and prosecuted so as to survive litigation. Patents are expensive, risky investments—expensive to obtain and very expensive to enforce. With that in mind, are there protocols that companies and IP counsel can and should be implementing to survive challenges to their inventorship determinations, even though the exact form of those challenges and the strategies that IP counsel will utilize in those battles are not yet known? The answer is, emphatically, yes.
How IP Counsel can Help. While there will always be some corner cases that are particularly difficult, and some inventions may possibly be impossible to patent in many jurisdictions due to AI participation in the inventive process, experienced IP counsel with long records of producing patents that survive litigation can help you implement protocols to document inventorship and inventorship decisions so as to maximize your odds of your patents surviving inventorship challenges. For example, companies can establish a policy for inventors who use AI tools to require those inventors to have the AI tool(s) record all prompts and answers, and to save those prompts and answers to one or more files to be included as part of their invention disclosure statement. Further, the policy may require or recommend that legal counsel record an explanation as to how they took that information into account in determining inventorship. It is posited that well-documented, reasonably-made inventorship determinations, resolved near the time of inventorship, are less likely to be disregarded during litigation than inventorship determinations where the role of AI has not been well documented, leaving far too much room for speculation and argument as to the role AI actually played in the conception of the invention.
[1] https://www.federalregister.gov/documents/2025/11/28/2025-21457/revised-inventorship-guidance-for-ai-assisted-inventions
[2] https://www.federalregister.gov/documents/2024/02/13/2024-02623/inventorship-guidance-for-ai-assisted-inventions
[3] For example, https://www.linkedin.com/posts/marklemley_us-patent-office-issues-new-guidelines-for-activity-7399499800846647296-cirC/