‘Patent Prosecutor’ or ‘AI-Agile IP Counselor’?—A High-Stakes Crossroads

“This is the first time in history nobody has any idea what the world will look like in 10 years …. So hedge your bets.” ~ Yuval Noah Harari

In a 2017 IPWatchdog article, I challenged practitioners engaged in patent prosecution: strive to embody the traits of an “IP counselor,” who brings a broader strategic mission and skill set than “just a patent prosecutor.” Likewise, I encouraged clients to retain IP counselors as their counsel of choice.

My cautionary advice stemmed from patent prosecution’s vulnerability to complacency and commoditization, such as due to its structured nature and incentives to obtain as many patents as possible. In addition, relative to their peers, many practitioners provide relatively undifferentiated services, limiting their attractiveness to prospective clients and their staying power for existing clients.

Fast forward to 2026, another year in which assistive AI tools for patent prosecution will become more powerful and transformative to the profession. The risk of complacency and commoditization has never been greater.

I previously posited that an IP counselor exhibits seven traits, namely: (1) relentless advocacy, (2) the embrace of new skills, (3) seeing value as clients see, (4) the pursuit of meaningful client dialogue, (5) awareness of the evolving business and legal landscape, (6) broad and pragmatic thinking, and (7) innovation. Though these traits remain as critical as ever, today IP counselors face new risks and opportunities along our shared journey toward an AI-native future.

To surmount these challenges, IP counselors need to understand the altered practice landscape and consider the implications for their specific practice.

Predicted Benefits of AI Patent Tools

Many in the IP field expect that assistive AI tools for patent drafting, office action responses, analysis, and related tasks will continue to advance in sophistication, accuracy, usability, and interoperability with other tools and systems both within and across teams and organizations.

Accordingly, a host of material benefits should materialize:

• Substantial Time Savings (Also Termed Time Compression). AI tools will enable substantially higher efficiencies across patent prosecution tasks, wherein work can be performed more quickly and with fewer routine or manual-intensive practitioner inputs. Potential efficiency gains as high as 80% have been cited.
• Higher Written Quality. AI tools will enable practitioners to prepare work product of higher written quality while expending less time and effort in the writing process.
• Higher Substantive Quality. AI tools will enable practitioners to prepare work product of a substantive technical and legal quality often exceeding what is possible without use of such tools.
• Greater In-House Self-Sufficiency. AI tools will enable in-house departments to become less reliant upon outside counsel for certain tasks or subsets of tasks.
• Enhanced Collaboration. AI tools will enable enhanced collaboration between and among individuals and entities involved in the lifecycle of a patent.

These benefits are expected, even if, as many believe, AI never provides total or near-total automation to practitioners.

Empowerment for All?

Following an initial period of skepticism, current sentiments about AI’s long-term impacts on patent prosecution seem bullish. Colleagues and AI vendors often speak in binary terms: AI tools will empower AI-savvy patent professionals in both law firm and in-house settings. Conversely, professionals who lag behind in AI adoption and upskilling will lose ground.

However, this empowerment narrative—in essence, adopt AI and you will succeed—paints the patent industry with a broad brush, potentially lulling practitioners into a false sense of security.

The narrative seems to assume that (1) clients will value practitioners in the future at least as much as they do now and (2) ecosystem participants are unlikely to exhibit strategic behavior that would be materially disruptive to the viability of peer practices.

Drilling down, both assumptions are tenuous as universal propositions.

Differing Practices, Differing Vulnerability

We first should acknowledge that heterogeneity exists across patent prosecution practices, clients’ internal operations, and client matters. For instance, consider the following general clusters of prosecution matters:

• Cluster 1: Low-Volume Matters Requiring Mostly Standard Expertise. This cluster corresponds to clients (a) whose aggregate work volume can be adequately handled by individual practitioners or small teams of practitioners without tying up substantial portions of their bandwidth (“low volume”) and (b) whose needs can be satisfied by practitioner expertise that is in relatively abundant supply across the profession (“standard expertise”).
• Cluster 2: Low-Volume Matters Requiring Mostly Specialized Expertise. This cluster corresponds to clients (a) with low volume needs (b) that only can be satisfied by practitioner expertise that is in relatively short supply across the profession, such as specialized technology expertise or sector-, industry-, or regulatory-specific strategic expertise (“specialized expertise”).
• Cluster 3: High-Volume Matters Requiring Mostly Standard Expertise. This cluster corresponds to clients (a) whose aggregated volume ties up substantial portions of practitioners’ bandwidth (“high volume”) and (b) whose needs can be satisfied by standard expertise.
• Cluster 4: High-Volume Matters Requiring Mostly Specialized Practitioner Expertise. This cluster corresponds to clients (a) with high volume needs (b) that only can be satisfied by specialized expertise.

The above heterogeneity highlights at least two potential vulnerabilities in the value proposition that practitioners offer to clients: practitioners’ relative fungibility in expertise and their relative capacity to handle work volume. To the extent that AI tools provide benefits in these areas, AI-empowered practitioners won’t be equally immune from AI forces. Some may have more or less exposure.

For specialized patent work (Clusters 2 and 4), associated practitioners have a competitive advantage—their in-demand expertise—independent of AI. Therefore, they seem poised to benefit from AI’s promise—saving time and increasing quality outcomes—with less fear of AI-induced external competition.

For standard patent work (Clusters 1 and 3), incumbent practitioners also can leverage AI to streamline and improve their work. But fundamentally, their expertise is more fungible, leaving them more exposed to potential loss of work to parties who discover how to more profitably or cost-effectively deliver value or ROI to clients. Such parties may include law firms, alternative legal service providers (ALSPs), non-lawyers, and insourced corporate team members.

Experienced patent practitioners and business-minded clients also will attest that, regardless of whether standard or specialized expertise is required, the relative importance of individual patent matters also differs markedly. While some patent matters are highly strategic or mission-critical, many are of lesser importance. The former group typically requires white-glove treatment by practitioners. The latter group typically doesn’t require as exacting or intensive performance.

This means that even specialized patent work (Clusters 2 and 4) may be susceptible to AI-induced competition, particularly for cases of lesser importance. Simply put, clients may be comfortable leaning upon specialists who provide adequate, if not top-tier, work product, for lower prices.

Practice Cannibalization

The empowerment narrative also seems to overlook potential systemic, AI-driven changes in client and practitioner behavior. It’s conceivable that, even as it empowers in some ways, AI ultimately will have cannibalizing economic effects on certain patent practices and subsets of practices.

For example, cognizant of large efficiency gains attributable to AI tools, strategically minded clients may increasingly lean upon outside counsel to lower effective unit pricing for tasks not necessitating high-value, specialized expertise. Although pressure initially may emerge sporadically, it may become more widespread, especially as providers compete to retain or grow revenues.

Facing revenue shortfalls, outside counsel should not expect current clients to automatically channel cost savings to additional patent tasks. Indeed, many enterprises have a limited fount of patentable innovations that, according to decision makers, sufficiently align with business value and thus merit protection. Moreover, pursuing additional patent filings may incur government and prosecution fees that dwarf AI-driven cost savings; clients may view enlarged portfolios as cost-prohibitive.

As AI tools become more powerful, resourceful in-house departments may be incentivized to begin or expand insourcing of patent work or portions thereof, to the potential detriment of law firms and other providers of patent prosecution services. For instance, departments may prepare, file, and prosecute patent applications, or they may prepare substantially complete draft applications for finalization by outside counsel. As analytics tools advance, in-house professionals also may carry the laboring oar for patentability, clearance (freedom-to-operate), and landscape reviews well beyond current levels.

Enterprising law firms, ALSPs, and individual practitioners similarly may perceive in AI a significant opportunity, a critical necessity, or both—to win more patent work, proactively displace incumbent providers, join new cohorts, and engineer leaner, more profitable operations. Their resulting successes may come at the expense of others who fail to adapt.

A Crossroads, Not a Dead End

Relative to present day, the above AI-driven scenarios could pave the way for material impacts on the business and career sides of patent prosecution—such as decreased prosecution revenue and reduced staffing—though practitioners may experience widely differing outcomes due to their client mix, expertise, and capacity to navigate shifting winds to advantage. We’ll explore how IP counselors can successfully navigate such risks and opportunities in a subsequent article.

Image Source: Deposit Photos
Author: pklimenko
Image ID: 35935519