Under current US and Canadian patent practice, an AI system cannot be named as an inventor, so ownership of an AI-assisted invention starts with a person who conceived it and passes on by assignment. The US Patent and Trademark Office (USPTO) restated this on November 28, 2025, and Canada's Commissioner of Patents reached the same result for the DABUS system in June 2025, with a Federal Court appeal still pending as of October 24, 2026.
Key takeaways
- The USPTO replaced its February 2024 guidance with a single inventorship test: the same standard applies whether or not AI was used.
- US examiners presume the named inventors are the real human inventors, and an application listing an AI system as inventor is rejected.
- Canada's Patent Act does not define "inventor," but the Commissioner of Patents held in 2025 that only natural persons qualify; the challenge is pending in the Federal Court.
- Inventorship and ownership are separate questions: rights can be assigned in writing, but only after a human inventor exists.
Inventorship comes first, ownership second
A patent right begins with the inventor. In the United States, 35 U.S.C. 100(f) defines the inventor as the "individual" or individuals who invented or discovered the subject matter. Canada's Patent Act, in section 27, says a patent is granted to the inventor or the inventor's legal representative and that the application must be filed by one of them. Section 2 of the Act, which holds the definitions, has no standalone definition of "inventor."
Ownership then moves by contract. Under 35 U.S.C. 261, patents and applications are assignable by a written instrument, and an assignment not recorded with the USPTO within three months can lose out to a later buyer who paid value without notice. Canada's section 49 makes a patent, an application, and the right or interest in an invention transferable, and an unrecorded transfer is void against a later recorded one. If no valid human inventor exists, there is nothing to assign, which is why the inventorship ruling matters to owners.
What the USPTO's November 2025 notice says
The notice, published in the Federal Register as document 2025-21457 under Docket No. PTO-P-2025-0014, rescinds the February 13, 2024 guidance in its entirety. The older approach had applied the Pannu factors to AI-assisted work. The new notice limits those factors to cases where several natural persons may be joint inventors, because an AI system is not a person and cannot be a joint inventor.
For a single human using AI, the question is conception: whether that person formed a definite and permanent idea of the complete invention. The notice describes generative AI as an instrument comparable to laboratory equipment, software, or a research database. Any application that lists an AI system as inventor should be rejected under 35 U.S.C. 101 and 115. A priority claim to a foreign filing that names only an AI tool as inventor will not be accepted, since at least one natural person must be shared between the filings. The notice applies equally to design and plant patents. It is examination guidance, not a statute, and courts decide inventorship disputes.
Canada: the DABUS refusal and the pending appeal
Canadian application 3,137,161, covering a food container and a signaling device, named the AI system DABUS as inventor. Law firm reports of the decision state that the Commissioner of Patents refused it in June 2025 on the Patent Appeal Board's recommendation, and that the refusal rested on inventorship alone, not on novelty or other patentability grounds. The reasoning reported is that "inventor" in the Act means a natural person, so the applicant could not validly claim rights through an AI system.
Stephen Thaler filed a notice of appeal in the Federal Court on December 5, 2025 (file T-4928-25), arguing that the term should be read in light of technology that can generate inventions autonomously. No Federal Court decision was found as of October 24, 2026. The US Federal Circuit decided the parallel question against Thaler in 2022, in a case the USPTO cites as Thaler v. Vidal, 43 F.4th 1207.
The two systems side by side
| Question | United States | Canada |
|---|---|---|
| Can an AI system be named inventor? | No, per the Federal Circuit and the 2025 USPTO notice | No, per the 2025 Commissioner decision; appeal pending |
| Test for a person using AI | Conception of the claimed invention by that person | No AI-specific test found in this review; general inventorship case law applies |
| Who may own first | The human inventor or inventors | The inventor or the inventor's legal representative |
| Transfer | Written assignment; record within three months | Transferable; unrecorded transfer is void against a later recorded one |
| Source type | Agency guidance plus statute | Commissioner decision plus statute |
Records that bear on conception
Because conception by a person is the test, the paper trail around AI-assisted work is the practical evidence. A checklist consistent with the USPTO's wording:
- Who defined the problem and the specific solution, as opposed to a general goal or research plan.
- Which outputs were accepted, rejected, or changed, and by whom.
- Whether employment or contractor agreements already assign inventions to the organization.
- Which tool versions were used, since provider terms can differ on rights in outputs.
This article is general information, not legal advice. Patent law is fact-specific, guidance can be replaced, and the Canadian appeal could change the position described here. Anyone filing or buying rights in an AI-assisted invention should consult a registered patent agent or patent attorney and read the primary texts, including the USPTO notice and section 27 of the Patent Act.
FAQ
Can a company own a patent on something an AI system produced?
Only if a natural person qualifies as an inventor under the conception test. The company then holds rights by assignment or employment agreement. If no human conceived the claimed invention, the USPTO notice leaves no route to name the AI instead.
Does using AI make the tool provider a co-inventor?
No. The USPTO treats AI systems as instruments, in the same group as lab equipment and research databases, so they do not become joint inventors.
Has Canada decided the question in court?
Not yet. The Commissioner's 2025 decision is the current position, and the Federal Court appeal filed December 5, 2025 had no reported ruling when this page was checked.
Is the USPTO notice binding law?
It binds examiners as agency practice but is not a statute or a court ruling. Courts can reach their own view when inventorship is disputed.
Related reading
- Canada's wider AI regulation picture
- how AI systems are developed
- AI applied to hard problems
- open questions in AI problem solving
More in AI Policy and Ethics.
Last verified: October 2026
Sources
- Revised Inventorship Guidance for AI-Assisted Inventions, Federal Register document 2025-21457, USPTO, November 28, 2025
- Revised inventorship guidance for AI-assisted inventions, USPTO announcement, November 26, 2025
- 35 U.S.C. 100 and 261, United States Code
- Patent Act, sections 27 and 49, Justice Laws Website, Government of Canada
- Appeal Filed: Thaler Challenges Refusal to Recognize AI as an Inventor, Bennett Jones, December 2025 (report of the Commissioner's decision and Federal Court file T-4928-25)
- Canadian Intellectual Property Office rules AI cannot be inventor: The DABUS decision, Law360 Canada, 2025