by Jeremy M. Ben-David, Founder, Managing Partner

Patent Attorneys, particularly those who actively assist their clients by obtaining patents for their innovations, can be curiously resistant to change; especially when such change is designed to make their lives easier and lower the cost and effort bar for inventors to obtain patent rights. 

For example, take the advent of Provisional applications in the US in 1995. The official fees were set very low so as to make patenting easy for ‘small’ inventors, and drafting them was intended to be much easier than non-Provisionals, as no claims were to be required. Of course, when it came down to it, Provisionals were and still are grossly misused. The average ‘small’ inventor, especially for the first time, knows that claims are not required in order to receive a filing date, and then proceeds to write (I refuse to use the word ‘draft’ in this context) a so-called description of the invention, which is often no better than yesterday’s grocery shopping list, while all the time saying “obviously” this and “obviously” that, and “needs” and “must have” (you get the point). To this is appended some sketches so that you now have a shopping list with illustrations(!), and voila! You have a mess that will be dumped into the lap of an unsuspecting Patent Attorney one month before the application term is up, to salvage and turn into a Utility Application. And that’s if he’s lucky. The unlucky ones will receive the dreaded salvage job possibly  only a few days before the deadline. 

And then there’s the one-time Chinese state support for patenting. At this point I must state emphatically that I view that the changes in IP that China has made internally since the GATT-TRIPS agreement of 1994 as nothing less than a revolution. Truly. Since that time the China National Intellectual Property Administration  has become the biggest and one of the best players in the IP game, and they never stop trying to upgrade. But – and there is a but – a number of years ago, they decided to support the drafting of patent applications for Chinese  inventors by Chinese Patent Attorneys to the tune of 2,000 RMB. Currently that is worth about $280, and I don’t think it was worth much more at the time. The problem this created was two-fold, namely, there was a huge proliferation of patent applications for which the client was charged the grand sum of  – yup, 2,000 RMB(!); let’s just say that they got what they paid for, and these documents, while probably never resulting in a registered patent, were accepted as patent applications, in much the same way that the US Provisionals are accepted as sufficient to obtain a filing date, irrespective of their contents.

So, after one system – which is still going strong after 18 years(!) – which allows inventors to establish a patent filing date based on a shopping list, and another which, at least for a time, allowed slightly less than scrupulous Patent Attorneys to charge for preparing such documents, is it any surprise that we Patent Attorneys greet with suspicion any new tools that are supposed to make our professional lives easier?

But really. What’s next? Despite software engineers not being “real” engineers (at least, if you ask the US Supreme Court), said non-engineers are continuing to develop increasingly sophisticated and more powerful software, reaching a point whereat all manner of prose can be prepared using AI. This includes the drafting of legal briefs and, yes, that’s right, patent applications. Enter the Brave New World in which we Patent Attorneys and Agents are replaced by AI systems, whose boundless, worldwide, meta-verse scavenging brains actually draft patent applications. I am convinced that they could do a much better job than the shopping list Provisionals and bargain basement $280 ‘professional’ jobs. And if that sounds like a back-handed compliment…..

I am actually aware that AI developers are working on such tools to  draft patent applications, and I also know that some of our fellow professionals are saying “why not try it for some of the more technical parts of our job?” 

And I do admit that this viewpoint really does have merits. Being able to put together a background in a matter of a couple of minutes by way of a general discussion of prior publications, or describing a simple mechanical object or constructions after feeding in the labels and reference numerals, certainly has some appeal. If these tasks can be done in a few minutes and merely require a brief review, then why not?

But. 

That is where I would draw the line. Our professional duty to our clients and dedication to obtaining worthwhile rights carefully crafted to their needs require us to be able to clearly detail some of the reasons why those who are not patent professionals need to work with those who are, and not to rely on AI tools to craft a skillful draft. Inventors who are truly savvy know that they should work with a skilled, experienced patent professional, and rely on her or him to draft what needs to be drafted and in the manner in which it needs to be drafted. That is certainly true with regard to claims, and, by interpolation, is no less true when it comes to molding the description properly so that it supports the subtleties of the claims. 

If you’ve read this non-AI drafted piece until this point, you may be wondering if I would say what I have said above if I had actually ever tried using AI software. Well, I actually went one better. I logged into my chat.openai account and asked it the following question: “I am an inventor with no patent drafting experience. Is it wise for me to draft my own patent application?”

And guess what the answer was!

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