Generative artificial intelligence (AI) systems are transforming industries, including the legal process for obtaining patents on new inventions. This transformation will be dramatic in the coming years, as technology companies, law firms, and the United States Patent & Trademark Office leverage AI to streamline their workflow. Ultimately, the future of patent protection will involve a battle of competing AI systems that dramatically reduce the time and cost required to obtain a patent.
AI has grabbed headlines in the patent world because it heralds a new era of discoveries made without human involvement. Although AI systems cannot be considered an inventor for purposes of obtaining a patent on an invention[i], AI tools are increasingly used to assist in the conception of new inventions. Indeed, the number of patents referencing AI has exploded in recent years.[ii]
Less well-known is how AI will revolutionize the process of drafting and examining patent applications. Inventors and technology companies credibly imagine a world where applying for and obtaining patents on new inventions is easier, cheaper, and faster because of AI tools.
Patent applications will be drafted in less time and examined faster, with the potential for routinely granting patents in less than a year. That world is coming, and AI will make it possible. Traditionally, the process of drafting and obtaining a patent is time consuming and expensive.
Drafting a patent application on a novel invention takes several weeks or months, depending on the complexity of the technology. After filing a patent application with the Patent Office, an inventor typically waits an average of over 19 months to receive an initial response from the Patent Office.[iii] An additional 7 months—or 26 months in total—are required to reach a final decision on a patent application.[iv]
Thus, the average time to obtain a patent is over two years, with many patents requiring significantly more time to issue. In some industries, this long examination process is an impediment to pursuing patent protection on novel innovations.
AI technology is transforming this process, making each step easier and faster to accomplish. Technology companies, law firms, and the Patent Office have already begun to integrate AI tools into their workflow and in coming years AI will likely play a substantial role in the entire process. AI will change the way that patent applications are drafted and how the Patent Office examines them.
Technology companies and intellectual property law firms can already use AI applications to assist with drafting patent applications. Current AI systems can generate draft patent applications, although not very elegantly, and the quality of those patent applications will continue to improve as AI models are fine-tuned to the intricacies of patent drafting.
The Patent Office recognizes the value in incorporating AI into a patent lawyer’s practice, including improving the quality of patent applications and the time required to draft them:
Patent practitioners are increasingly relying on AI-based tools to research prior art, automate the patent application review process, and to gain insights into examiner behavior. These tools have the potential to lower the barriers and costs of practicing before the [Patent] Office as well as helping law practitioners offer services to their clients with improved quality and efficiency.[v]
Likewise, patent examiners at the Patent Office already use AI tools to examine patent applications, including for prior art searching. The Patent Office is “integrating AI technologies into [its] next-generation tools to enhance the quality and efficiency of patent and trademark examination. Our examiners have conducted over 1.3 million searches using AI search tools.”[vi] This adoption of AI will naturally expand into evaluating patent applications and drafting objections and rejections.
As both patent lawyers and the Patent Office ramp up their use of AI, it could result in an AI arms race. Law firms and the Patent Office will have strong incentives to invest in their AI systems to provide more accurate and useful work product.
The back-and-forth battle between private and government AI systems could determine the fate of future patent applications. On one side, technology companies and law firms will employ AI to draft patent applications, evaluate responses from the Patent Office, and propose counter-arguments to distinguish prior art references. For instance, patent applications will be drafted more quickly and automatically checked for compliance with patent laws and regulations. On the other side, the Patent Office will use AI to evaluate patent applications, search for prior art, and draft objections and rejections to proposed claims.
Instead of waiting a year or more for the Patent Office to examine a patent application, this review could happen shortly after the application is filed. This one improvement, among the many that AI will advance, will significantly reduce the time required to obtain a patent. In addition, the Patent Office could make its AI tools available to the public so that inventors can check their patent applications prior to filing and learn how to improve them.
In the near term, patent lawyers and Patent Office examiners need not worry about AI replacing their skills and strategic thinking. Human review, analysis, and confirmation are required to properly use AI systems in the patenting process. AI tools are known to make mistakes and have “hallucinations” when generating responses. These mistakes have resulted in judges sanctioning attorneys for relying on AI without checking the end product, such as a legal brief.[vii]
Likewise, the Patent Office requires applicants and their attorneys to review materials submitted to the office to ensure their accuracy. Relying on AI alone is not enough.
[A]ny paper submitted to the USPTO must be reviewed by the party or parties presenting the paper. Those parties are responsible for the contents therein. Simply relying on the accuracy of an AI tool is not a reasonable inquiry. Therefore, if an AI tool is used in drafting or editing a document, the party must still review its contents and ensure the paper is in accordance with the certifications being made.For example, given the potential for generative AI systems to omit, misstate, or even ‘‘hallucinate’’ or ‘‘confabulate’’ information, the party or parties presenting the paper must ensure that all statements in the paper are true to their own knowledge and made based on information that is believed to be true.[viii]
Patent applicants and their attorneys must carefully review patent applications drafted with AI assistance to ensure that the AI system is not introducing new ideas that were not conceived of by the human inventors. New matter added by an AI system could impact inventorship and patentability, thus undermining the value of using AI in the first place.
The future of patent protection is bright because AI will make the process more efficient and less costly. The benefits of integrating AI into the patent process significantly outweigh the risks. Patent practitioners will draft applications and responses more quickly and efficiently, saving clients time and money. Individual inventors and small companies may pursue patent protection that was previously prohibitively expensive.
Patent Office examiners will be able to examine patent applications faster and thus reduce the backlog[ix] of unexamined applications. Finally, the quality of issued patents will improve, as both patent applicants and the Patent Office use AI’s access to vast repositories of prior art to help determine the proper scope of inventions.
[i] Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022) (holding that an artificial intelligence system could not be an inventor on a patent application because it is not an individual).
[ii] United States Patent and Trademark Office: “Inventing AI, Tracing the diffusion of artificial intelligence with U.S. Patents,” Key Findings (“In the 16 years from 2002 to 2018, annual AI patent applications increased by more than 100%, rising from 30,000 to more than 60,000 annually. Over the same period, the share of all patent applications that contain AI grew from 9% to nearly 16%”) https://www.uspto.gov/sites/default/files/documents/OCE-DH-AI.pdf
[iii] United States Patent and Trademark Office: First Office Action pendency was 19.9 months in 2024 (“First Office Action pendency is the average number of months from the patent application filing date to the date a First Office Action is mailed by the USPTO.”) https://www.uspto.gov/dashboard/patents/pendency.html
[iv] Id. Traditional Total pendency was 26.3 months in 2024. (Traditional Total “pendency has been measured as the average number of months from the patent application filing date to the date the application has reached final disposition (e.g., issued as a patent or abandoned)”).
[v] “Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office,” Federal Register, Vol. 89, No. 71, April 11, 2024, Notices, 25610. https://www.federalregister.gov/documents/2024/04/11/2024-07629/guidance-on-use-of-artificial-intelligence-based-tools-in-practice-before-the-united-states-patent
[vi] United States Patent and Trademark Office: “Latest updates on artificial intelligence and intellectual property,” Sept. 29, 2023, https://www.uspto.gov/subscription-center/2023/latest-updates-artificial-intelligence-and-intellectual-property
[vii] CNBC: “Judge sanctions lawyers for brief written by A.I. with fake citations,” June 22, 2023, https://www.cnbc.com/2023/06/22/judge-sanctions-lawyers-whose-ai-written-filing-contained-fake-citations.html
[viii] “Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office,” Federal Register, Vol. 89, No. 71, April 11, 2024, Notices, 25614. https://www.federalregister.gov/documents/2024/04/11/2024-07629/guidance-on-use-of-artificial-intelligence-based-tools-in-practice-before-the-united-states-patent
[ix] United States Patent and Trademark Office: “Patents Production, Unexamined Inventory and Filings Data,” more than 800,000 patent applications have not been examined by the Patent Office. https://www.uspto.gov/dashboard/patents/production-unexamined-filing.html
