NEWS
How the USPTO Solved AI Inventorship by Looking the Other Way
For a while there, it looked like we had some rules.
Back in 2022, the Federal Circuit decided Thaler v. Vidal and told us, pretty clearly, that inventors under U.S. patent law have to be human beings. Not corporations. Not algorithms. Not Stephen Thaler’s AI system, DABUS. Humans only. Full stop.
But that decision never really answered the question everyone actually cares about: what happens when humans and AI work together?
Because that’s the real world. Engineers don’t lock an AI in a room and come back later to see what it invented. Humans prompt the system, steer it, pick the good results, discard the junk, and turn outputs into working products. So how much human involvement is “enough” to count as inventorship?
Former USPTO Director Kathi Vidal at least tried to answer that. Her guidance said, in essence: if a human made more than an insignificant contribution, then fine — that human could be named as an inventor. It wasn’t perfect, and it raised some awkward conceptual issues, but at least it gave practitioners something to work with. There was a line, even if it was a fuzzy one.
Fast forward to November 2025, and new Director John Squires has taken a very different approach. Instead of drawing lines, the USPTO has decided not to look at the map at all.
Under the new guidance, the Office isn’t going to ask how much AI was involved. It isn’t going to ask what the human actually did. If a natural person is willing to sign the inventor’s oath, the USPTO will presume human inventorship and move on. In other words: don’t ask, don’t tell.
Practically speaking, this takes most of the bite out of Thaler. You still can’t list an AI as an inventor — that rule technically survives. But as long as you can find a human anywhere near the project who’s willing to raise their hand and say “Yep, that was me,” you’re good to go.
And let’s be honest: finding that person is rarely hard.
Anyone who has spent time around corporate R&D knows this drill. When inventorship gets murky, someone will always step forward. The project manager. The senior engineer. The person who approved the budget. The intern who typed the prompts. It’s usually pretty easy to identify a human with some relationship to the product and prop them up as “the inventor,” even if the actual inventive heavy lifting was done elsewhere.
From the USPTO’s perspective, this policy is efficient. No investigations. No philosophical debates about machine cognition. No uncomfortable questions about whether the Patent Act is built on assumptions from a pre-AI world. But efficiency comes at a cost.
What the Office is really doing here is choosing a legal fiction and sticking with it. We all pretend that the invention is human, because the paperwork says so, even when everyone involved knows the reality is more complicated. It’s inventorship theater: the forms get signed, the boxes get checked, and nobody looks too closely behind the curtain.
Stephen Thaler’s DABUS cases forced courts to confront the issue head-on, but in an oddly artificial way. Thaler insisted that no human invented anything at all, which made the legal question easy and the facts unrealistic. Real innovation doesn’t look like that. Humans and machines work together, and the hard question isn’t whether AI can be the sole inventor — it’s how we should allocate credit when conception is shared.
The new USPTO guidance avoids that question entirely. It preserves the appearance of human inventorship while quietly allowing AI-generated inventions to be patented, as long as everyone agrees not to talk too much about how the sausage was made.
That may feel pragmatic today. But legal fictions have a shelf life. When they stop reflecting how innovation actually happens, they don’t just simplify administration — they start to erode trust in the system itself.
Getty v. Stability AI: A Win for AI—But Don’t Pop the Champagne Yet
The UK High Court has finally weighed in on generative AI and copyright, and if you’re an AI developer, the decision probably felt like a sigh of relief. If you’re a content owner, maybe not so much. Either way, this case is less “game over” and more “first inning.”
On November 4, 2025, the Court ruled largely in favor of Stability AI in its dispute with Getty Images over Stable Diffusion. Getty claimed that Stability illegally scraped millions of Getty images to train its AI model and then made that model available in the UK. The Court said: not so fast.
Training Is Not the Same as Copying
Here’s the Court’s basic logic, translated out of legalese.
Yes, Stable Diffusion was trained on copyrighted images. But no, it doesn’t keep them. Once training is done, the images aren’t sitting inside the model like photos in a filing cabinet. The AI doesn’t pull up a Getty image when you type in a prompt. It generates something new based on learned patterns.
Because of that, Getty couldn’t prove that the model—or the images it produced—were actually copies of Getty’s works. And under UK copyright law, that matters. If the copyrighted work isn’t there anymore, the model stops being an “infringing copy.”
Think of it like learning to paint by studying Monet. You don’t carry Monet’s canvases around in your backpack afterward. You just paint better landscapes. That distinction carried the day here.
But Watermarks Are a Different Story
Trademark law, however, didn’t let Stability off so easily.
The Court found that Stable Diffusion had, at times, generated images with the Getty watermark. That’s not abstract learning—that’s branding showing up where it shouldn’t. If a consumer sees a Getty watermark, they may reasonably assume Getty had something to do with the image.
And here’s the key point for AI companies: the Court pinned responsibility on Stability, not on the user who typed the prompt. If you control the training data, you own the consequences.
What the Court Didn’t Decide (And That’s the Big Part)
This case did not answer the question everyone actually cares about: is scraping copyrighted material to train AI legal in the UK?
Getty tried to litigate that issue directly, but those claims fell apart because the training happened outside the UK. So the Court never had to decide whether training itself is infringement. That means the hardest question is still sitting on the table, untouched.
The Court did make one important observation, though: an AI model can be an “article” under UK copyright law, even if it’s intangible and sitting in the cloud. Translation: if a future plaintiff can show that a model actually stores or reproduces protected works, the result could be very different.
So What Does This Mean in the Real World?
For AI developers, this is a helpful decision—but only within a very narrow lane. It says that training on copyrighted material doesn’t automatically equal infringement, at least when the model doesn’t retain or reproduce that material.
For everyone else, especially companies deploying generative tools at scale, the warning signs are still there. Trademark problems can surface quickly. Copyright law is still evolving. And the UK government is expected to weigh in again by March 2026, possibly with new rules that look more like the EU’s opt-out approach for AI training.
The Bottom Line
This case buys AI developers some breathing room. It does not buy certainty.
What the USPTO’s 0% IPR Institution Rate Means for Patent Holders
Since October 2025, USPTO Director John Squires has personally taken control of IPR institution decisions — and the results are stark: every petition submitted under his watch has been denied. That’s right: 0% institution. Historically, the PTAB accepted about two-thirds of petitions. Now, denials come as short, unexplained notices listing only the IPR numbers. No reasoning. No analysis. Just a flat “denied.”
Why it matters: Previously, three-judge PTAB panels carefully reviewed petitions, weighing the technical merits and legal arguments, producing reasoned institution decisions that guided patent owners and practitioners. Now, with Squires juggling an entire agency of 10,000+ employees, it’s hard to imagine each petition getting anything more than a cursory glance. The lack of explanation also means no transparency and raises questions about whether decisions are substantive or just procedural.
Patent owners are pushing back, citing factors like patent age, parallel district court cases, and strategic delays by challengers. Aerin Medical v. Neurent Medical is a case in point: Neurent argued that Aerin waited too long to file IPR, and that the disputes could have been raised earlier in post-grant review. These arguments reflect a broader trend: patentees are trying to use the discretionary denial process to protect their rights.
Bottom line: The USPTO’s new “no” policy changes the IPR landscape. Patentees can no longer rely on PTAB panels to thoughtfully review petitions, and the system’s transparency and predictability are diminished. For anyone holding patents, this signals a return to stronger patent rights and less administrative risk, but it also raises questions about whether IPR is still a meaningful alternative to litigation.
USPTO Launches AI “Pre-Examination Search” Pilot: What It Means for You
The USPTO just kicked off a new pilot program: the Automated Pre-Examination Search, or ASRN. The idea is simple—before a human examiner ever looks at your application, an AI combs through U.S. and foreign patent databases and gives you up to ten relevant prior art references. Right now, it’s limited to 1,600 original utility applications over six months, but if it works, expect this to become part of standard practice.
To get in on it, you file electronically, pay a $450 petition fee, and meet eligibility rules. Yes, the fee is steep for a simple list of references, but the PTO has thrown in a few sweeteners to make it worthwhile:
- Quick abandonment: Hit by dead-center prior art? Abandon and get your search fee—and any excess claim fees—back.
- Preliminary amendments: Tweak claims before examiner review, potentially moving things along faster.
- Examiner reliance: If examiners actually use the ASRN (and the PTO hints they will), it could shortcut a lot of duplicate searching.
- International filing prep: You get prior art intelligence before the 12-month Paris Convention deadline, making foreign filing decisions smarter.
A note on IDS: the ASRN is part of your prosecution history, but not technically an IDS. Practically speaking, you’ll probably want to submit it anyway.
Here’s the bottom line: this program’s value depends on two things—how good the AI search is, and whether examiners actually rely on it. If both go well, you get early insights, faster prosecution, and fewer wasted office actions. If not, that $450 fee might sting a little. Either way, this is the PTO dipping its toes into AI-driven examination, and a successful pilot could lead to bigger changes down the road.
USPTO Proposes Major IPR Changes: What Patent Owners Should Know
The USPTO is considering rules that could fundamentally change how inter partes review (IPR) works. If finalized, these changes would make it harder for third parties to challenge patents at the PTAB—potentially a big win for patent owners—but also raise strategic questions for anyone considering an IPR.
Here’s what patentees need to know:
- Previous Validity Findings Could Shield Your Patent
The USPTO would bar IPRs if the challenged claims—or their dependent claims—have already been found valid in prior proceedings, including district courts, ITC, or PTAB trials. Even dependent claims could be protected if the corresponding independent claim survived. For patent owners, this means patents that have already held up under scrutiny may now enjoy stronger protection against repeated attacks.
- Parallel Litigation May Limit IPRs
If a patent is already involved in ongoing litigation and the court is likely to reach a validity decision before the PTAB concludes, the USPTO could deny an IPR. This formalizes what has been called the Fintiv framework. Patent owners benefit because this reduces the risk of simultaneous challenges in court and at the PTAB, giving you more predictable enforcement and litigation outcomes.
- Petitioners Must Make Binding Stipulations
Under the proposed rules, petitioners would have to commit not to raise anticipation or obviousness arguments anywhere else. This goes beyond current estoppel rules and further limits duplicative challenges, effectively giving patent owners more control over the PTAB forum.
Limited Exceptions Exist, But Are Narrow
The rules allow IPRs in very limited cases, such as bad-faith prior challenges or major changes in law. Routine new evidence or legal arguments will generally not reopen a previously defended patent.
What This Means for You
- Patents that have survived prior scrutiny may now be more secure from repeated PTAB challenges.
- Ongoing litigation may reduce the likelihood of parallel PTAB proceedings, simplifying enforcement strategy.
- Stronger IPR protections can make patents more valuable for licensing or enforcement, as serial attacks are curtailed.
- Strategic awareness remains critical: understanding prior proceedings, current litigation, and the timing of potential IPRs is essential.
The USPTO is taking comments on these proposed rules for a short 30-day period, and patent owners should monitor these developments closely, particularly if their patents are frequently challenged.
Patentees in Indonesia: Don’t Forget Your 31 December 2025 Statement of Working
If you hold a patent in Indonesia, this is your annual wake-up call: the Statement of Working (SOW) is due 31 December 2025. This isn’t optional. Under Article 20A of Indonesia’s 2024 Patent Law, patent holders are required to report on whether they are actually using their patents in Indonesia.
Why does this matter? Because failing to submit the SOW isn’t just a clerical slip — it’s non-compliance with the law. Since 2016, Indonesia has made it clear: if you don’t make or use your patented invention locally, you risk a compulsory license or, worse, partial or full invalidation of your patent. The 2024 law simply reinforces that risk.
So what should you do? Prepare and submit your Statement of Working before the 31 December 2025 deadline. And don’t forget: this isn’t a one-time task — it’s an annual requirement. Filing on time keeps you compliant and shields your patent rights in Indonesia.
The takeaway: if your patent isn’t actively used in Indonesia, or if you haven’t filed your SOW, it’s time to act. The law doesn’t wait — and neither should you.
For foreign patent holders, we have a FAQ set up on the Statement of Work; where and when it is required. It can be found at the bottom of the page here: https://fishiplaw.com/faqs/patent-faqs/faq-foreign-filing/
Why IPR Decisions Don’t Preclude District Court Litigation
The kids are fighting over something and bring it to me to resolve. I don’t really want to get involved in whatever they’re arguing about, but instead of just telling them to knock it off, I agree to hear them out on one condition: if they’re going to drag me into this, they have to accept my decision and move on.
Each kid is convinced he’s absolutely right, so they agree. After listening to both number 1 and number 2’s arguments, I decide number 2 was wrong. I tell him that number 1 is right and that he needs to apologize. They both leave, number 1 looking smug and number 2 pouting.
Five minutes later, number 2 comes back and starts making the same arguments again, insisting I must not have understood the first time. I stop him right there and remind him that this issue has already been decided and he agreed to accept the judgment.
This is the basic legal principle of “issue preclusion”: once a court has finally decided a specific issue of fact or law, the parties can’t re-litigate that same issue in a later case- even if later case involves different claims.
Issue preclusion comes up frequently in patent cases because they often involve two sequential proceedings: an Inter Partes Review (IPR) at the Patent Trial and Appeal Board, followed by district court litigation. An IPR may cancel some claims, after which the patentee amends the lawsuit to assert similar—but not identical—claims in court. The accused infringer naturally argues that the PTAB has already decided the relevant issues and that the patentee should not get another bite at the apple.
The Federal Circuit has generally rejected that argument. Because invalidity in an IPR is decided under the lower preponderance of the evidence standard, while invalidity in district court must be proven by clear and convincing evidence, the two proceedings do not resolve the “same issue” for purposes of issue preclusion. In short, what counts as “already decided” in an IPR often isn’t “already decided” in court.
Number 2 would certainly approve.