USPTO’s “Don’t Ask, Don’t Tell” Policy: The Quiet Death of Thaler and the Legal Fiction of Human Inventorship

by Dennis Crouch

The Federal Circuit's 2022 decision in Thaler v. Vidal seemed to settle a fundamental question: only natural persons can be inventors under U.S. patent law.  But, the bigger near-term question has always been about human-AI collaboration - and what level of human contribution is sufficient to qualify as inventive.  Director Kathi Vidal implemented a team-based framework that allowed patenting if the human made a "more than insignificant contribution" to the invention.  This approach basically asked whether the human had done enough to be considered a joint joint inventor (alongside the AI). While that approach had some conceptual problems (permitting patenting without complete human inventorship), it - at least - set a standard for the agency to consider.

In a November 2025 guidance, new USPTO Director John Squires has rejected the Vidal approach and instead established a "don't ask, don't tell" policy for AI-assisted inventions creates a presumption of human inventorship so long as any natural person is willing to sign the oath.  For all practical purposes, this approach is also a repudiation of Thaler, so long as the patent applicant is able to find a human close to the invention willing to self-identify as the inventor. The system now effectively rewards an old habit in invention culture: when attribution becomes optional and unverifiable, someone will always be willing to step forward and claim the mantle of inventor.  In a chapter I wrote a few years ago examining corporate invention, I observed: "It is easy to identify a human with some relation to the product or innovation and prop-up that human as the inventor." Dennis Crouch, Legal Fictions and the Corporation as an Inventive Artificial Intelligence in R. Abbott ed., Research Handbook on Intellectual Property and Artificial Intelligence (Edward Elgar Publ’g 2022).