Willful Ignorance or Embracing AI to Find Prior Art? USPTO Misses the Mark

Artificial intelligence (AI) is frequently in the news. Policymakers and business executives must decide whether it is a revolutionary phenomenon, likely to overturn established enterprises and practices, or if it is a mere modest advancement in decades-old natural language capability over-advertised by Silicon Valley seeking the “next big thing” and hyped by reporters eager for the next byline. The patent office and the patent bar are not immune from the turmoil. The USPTO has issued several policies and inquiries related to the impact of AI on various aspects of patent prosecution. Most recent is a Request for Comments on the impact of AI on patentability determinations, in particular its impact on discovering and disclosing prior art. Until mid-2025, the USPTO had been regrettably defensive in its public statements on the subject. The patent bar, however, in its comments to the USPTO, recognizes the potential of AI technology. Generative AI can bring the patent system closer to achieving its goal of being an engine of innovation and improving public access to inventions. It has the capability to make patent prosecution more ac- curate and more efficient by assessing whether a new application for a patent is anticipated by older references and whether it is obvious to a person of ordinary skill using AI search technology. Examples show the power of generative AI in this context and encourage the patent office to embrace it, rather than keeping its distance.