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25 September 2023
In recent years, the rise of artificial intelligence (AI) tools has been impossible to ignore. From students utilising AI-generated content for school assignments to professionals seeking answers from AI language models, the impact of AI on various aspects of our lives is profound. However, the question that arises is whether AI, exemplified by ChatGPT, could be used by inventors as a replacement for the indispensable role of a patent attorney in the world of intellectual property. In this article, we delve into the possibilities and limitations of leveraging AI tools like ChatGPT in the patenting process in the European legal landscape.
Before exploring the potential applications of ChatGPT, let us grasp what this AI marvel is. OpenAI unveiled the first iteration of GPT-3 (Generative Pre-trained Transformer), the driving force behind ChatGPT, in June 2020. Subsequently, there have been updates and refinements, with GPT-3.5 representing the latest (free) release. OpenAI has extended access to this model via an API, enabling developers and researchers to harness its language generation capabilities in applications such as ChatGPT. The architecture of ChatGPT is optimized for processing sequential data, particularly text.
GPT models undergo extensive pre-training on vast datasets of text, honing their ability to predict the next word in a sentence based on context. After this initial pre-training, the models are fine-tuned for specific tasks, thereby tailoring their functionality. In the case of ChatGPT, fine-tuning involves training the base GPT model to generate conversational responses. It's important to note that while ChatGPT generates coherent, comprehensive responses, it does not possess a human-like understanding of text. Instead, it predicts the most probable next word in a sentence, creating understandable responses.
ChatGPT is remarkably easy to use, and the texts it generates seem, at first glance, quite solid. It can even mimic the style and vocabulary of a typical patent application. But if we dig deeper into the actual substance of the generated text, could an innovator really turn to ChatGPT for its patenting services and replace the role of an experienced patent attorney?
Advantages of ChatGPT for an innovator:
There are some immediate advantages that innovators can definitely make use of.
- Enhanced Efficiency: ChatGPT can significantly expedite research on a topic and patenting principles, allowing innovators to save valuable time and expense. ChatGPT might assist an innovator in understanding what their attorney needs, and how the prosecution process may progress.
- 24/7 Availability: With ChatGPT's round-the-clock accessibility, innovators can access information and insights whenever needed.
- Language Expertise: ChatGPT assists in deciphering complex technical language, and has a multi-lingual proficiency.
Disadvantages of Using ChatGPT to replace a Patent Attorney:
While ChatGPT can help innovators to generally improve understanding of the patenting process, there are serious concerns about using it to discuss an innovation, and particularly for drafting a patent application.
- Data Security: The use of AI tools, including ChatGPT, raises fears about data security and client confidentiality, in a field where protecting sensitive information is paramount. A chat session may be recorded and shared with third parties, which could mean loss of rights or generation of own prior art. A chat session may also be used to train the AI model, risking that an invention could form part of an answer to someone else’s query. In fact, discussing an invention with ChatGPT may be seen as a public disclosure in certain jurisdictions, which could be fatal when assessing the novelty of that same invention later on during prosecution.
- Lack of Human Judgment: ChatGPT lacks the nuanced judgment and legal expertise of human patent attorneys, particularly in understanding the intricacies of patent law, interpreting prior art, assessing inventive step and novelty, and considering filing strategies. Trusting that the AI model has been sufficiently trained on all the pitfalls that the attorney understands through years of experience and training is a highly risky strategy.
- Over-Reliance Risk: Excessive reliance on ChatGPT may diminish the critical thinking and problem-solving that innovators and attorneys frequently engage in. ChatGPT does not hold a critical discussion with an inventor, and thus does not discover the – often crucial – information lying beyond an invention disclosure.
- Ethical Considerations: The incorporation of AI in legal practice may raise ethical questions, particularly regarding AI bias and the transparency of decision-making processes. This may have implications for liability insurance and ethical responsibilities.
- Jurisdictional Compliance: Patent applications must adhere to specific requirements in each jurisdiction. ChatGPT's current limitations in comprehending the nuances of patent law necessitate the involvement of experienced patent attorneys to ensure compliance.
In conclusion, ChatGPT and similar AI tools are seductively easy to use, and may help an innovator to understand better the patenting process as such. However, there are too many risks linked with privacy and reliance, which is why it has not yet found any serious traction in more reputable patent attorney practices at the advising or drafting level.
ChatGPT could hold promise in the future as a patent drafting assistant, but for now the wisdom of experienced patent attorneys remains indispensable, ensuring the preservation of the integrity and quality of patent applications in accordance with established patent practices.
If you have any questions, we would be happy to help. Feel free to reach out to our European Patent Attorneys via email on firstname.lastname@example.org.
© Humans and ChatGPT 2023
Thanks ChatGPT! As opposed to a patent application, which has to be both technically and legally solid, a Newsletter article can definitely be polished up with a little help from AI.