Who Invented That? When AI Writes The Code, Patent Validity Issues May Follow

What You Need to Know

Key takeaway #1

A patent is invalid if it incorrectly lists the inventors unless the error can be corrected under 35 U.S.C. § 256(b).

Key takeaway #2

AI cannot be named as an inventor under current U.S. law, even if AI makes a patentable contribution to an invention.

Key takeaway #3

Patentees should be mindful of potential inventorship issues when using AI in the invention process.

In Fortress Iron, LP v. Digger Specialties, Inc., No. 24-2313 (Fed. Cir. Apr. 2, 2026), the U.S. Court of Appeals for the Federal Circuit reaffirmed what happens when a patent incorrectly lists the true inventors, and that error cannot be corrected under 35 U.S.C. § 256(b), which requires notice and a hearing for all “parties concerned.” In Fortress, the patent owner sought judicial correction to add an inventor under § 256(b), but that inventor could not be located. Because the missing inventor qualified as a “concerned” party under the statute, the lack of notice and a hearing