The legal industry loves speed. Faster prosecution, faster grants, faster to market. That's been the mantra for decades, and it's only intensified as artificial intelligence reshapes what's patentable and who gets to own it.
Here's the unpopular take: restraint, not speed, may be the smarter strategy right now.
We're in a genuinely unprecedented moment. The Patent Office is receiving applications for AI systems at volumes they haven't seen before. Meanwhile, the substantive law around what qualifies as patent-eligible subject matter remains unsettled. Courts are still working through foundational questions about AI-generated inventions, ownership attribution, and whether current frameworks even apply.
The recent approval of spectrum license streamlining in related technology spaces reflects a broader regulatory mood toward efficiency. That's sensible in contexts where the underlying legal framework is stable. Patent law in the AI context is not stable.
Consider what happens when firms rush. A patent gets granted on an AI training methodology based on current examiner interpretation of patentability standards. Two years later, a court decision narrows what's patent-eligible. That granted patent becomes a liability, not an asset. Firms waste resources defending something they might never have sought under clearer guidance. Litigation costs mount. The entire portfolio becomes harder to value and license.
This isn't theoretical. We've seen this cycle before. The post-Alice Corp v. CLS Bank period created exactly this kind of chaos, with hundreds of software patents suddenly vulnerable after being granted under slightly different standards. Patent holders tied up resources in costly reexaminations and litigation rather than innovation.
The Patent Office itself is stretched. Examiners are being asked to evaluate increasingly complex technical disclosures while the legal landscape remains genuinely uncertain. Speed in that environment doesn't equal efficiency. It equals risk.
There's another consideration: the public interest angle that IP practitioners should acknowledge, even if only internally. When patent law is in flux, faster prosecution can entrench advantages for parties who can afford to file comprehensively and litigate aggressively. Startups and smaller players lose. That's not just a competitive fairness issue; it's a policy problem that tends to invite regulatory backlash.
None of this means the Patent Office should stop examining AI applications. That would be absurd. Rather, there's a case for a more intentional middle path: reasonable pendency timelines paired with more thorough examination practices and clearer guidance documents.
The Patent Office has actually moved in this direction with AI guidance, which is commendable. But guidance documents without deliberate prosecution pace create cognitive dissonance. Examiners face pressure to move cases through, which can pull against the kind of careful analysis those guidance documents contemplate.
For in-house counsel, the implication is uncomfortable: filing aggressively right now may feel necessary, but it's potentially expensive. A more cautious approach, filing fewer but more defensible applications with higher-quality disclosures, might preserve resources better over the long term.
I'm not arguing for paralysis. I'm arguing for matching the pace of legal process to the pace of legal evolution. When substantive standards are clarifying, that's the moment to accelerate. We're not there yet.
The competitive pressure is real. No firm wants to see a rival secure patents they couldn't get. But that's an argument for industry-wide patience, coordinated through professional associations and policy discussions, not individual rationality. Individual firms acting in isolation will always choose speed.
That's where restraint becomes a strategic choice. It's contrarian. It requires believing that stability and defensibility ultimately outweigh first-mover advantages in an uncertain legal environment.
For IP law, that's not always the prevailing view. But it might be the smarter one.