Getting to Computer-Drafted Patents

It’s no secret that hiring a patent attorney is not cheap. But this is rightfully so; patent law is deeply complex, to put it mildly. There’s an adage among patent attorneys: “There is no such thing as a cheap patent.” You can pay the price up front to have a well-drafted, broad patent that accurately covers your invention and potential design-arounds. Or, you can pay the price later when your patent application never gets granted, when your patent is too narrow to enforce, or when your patent gets invalidated when you try to enforce it.

This is why attorneys and savvy business people alike always recommend using a skilled patent attorney to draft a patent application. And because it takes the time and detailed attention of a highly-skilled professional to draft a quality patent application, applying for a patent is expensive.

Despite this, there are a number of aspects of a patent attorney’s job that are simple or repetitive enough to be automated. A number of artificial intelligence (AI) companies have built tools that automate these repetitive or simple tasks, purportedly saving patent attorneys time and, ergo saving inventors money. For example, Specifio®, a startup incubated by the legal innovation accelerator LexisNexis® Legal Tech, touts their software allows a patent attorney to “offload the rote parts of patent preparation.” Indeed, the founders of Specifio® were recently granted U.S. Patent No. 10,417,341 for “Systems and methods for using machine learning and rules-based algorithms to create a patent specification based on human-provided patent claims such that the patent specification is created without human intervention” (say that 10 times fast!). Another AI patent company, Turbopatent®, similarly offers software described on their website as designed to help to “limit the tedious drafting tasks” and help patent practitioners “focus on high-value work” (I think this is a brilliant marketing strategy because every patent attorney I know has bemoaned not getting to focus more time and energy on “lawyer work,” as opposed to other more mundane tasks).

However, in my own *admittedly armchair* assessment, these solutions still fall far short of the real potential AI has to revolutionize the patent industry. A lot of the savings of automation are already reflected in the market price of a patent application because patent attorneys, being inventive themselves, have found their own ways to reduce time on these tasks. Thus, the additional cost of the software is not sufficiently offset by time savings. Indeed, my firm did an assessment of one patent automation company’s products and found that, in comparing the cost of the software to the amount of time saved, there would be ZERO net savings we could pass on to inventors.

Unfortunately, after all the mundane tasks are automated or otherwise streamlined, there still remains the bulk of the arduous and time-consuming tasks associated with preparing a legally and technically sound patent application. This is where we should be focusing technological development.

The reason current efforts to revolutionize the patent drafting and prosecution industry are falling short is because the industry seems to have lost touch with a foundational concept. In a patent attorney’s world, an invention is a set of words in the form of a claim. Those words set the bounds of what the invention is. But this is simply an effect of the massive bureaucracy we deal with on a daily basis (i.e., governments).