Ben Coogan

Will there be IP lawyers in the future or can clients rely on computers?

Ben Coogan

26 April 2018

IT Patents Trade marks Uncategorized

Much has been written about computational law and blockchain recently.

In short, computational law has been described as systems that can make automatic legal reasoning which can determine the outcome of a case.

We have written about blockchain in our blog here http://www.tglaw.com.au/ip-blog/2018/03/01/unravelling-blockchain-guide-blockchain-ip/.

We would all be burying our heads in the sand if we ignored computational law and blockchain. Indeed, Australia hosted its first computational law and blokchain festival in Sydney this year.

But if you think it’s a pie in the sky fantasy to have computers assist in reaching decisions in court rooms or in legal cases, think again. One of Australia’s greatest living legal minds, Justice Geoffrey Nettle of the High Court of Australia, presented a paper on computational law in 2016.12

If I can attempt to succinctly summarise a key point out of Justice Nettle’s paper it’s that he could see that it’s quite possible that a ‘significant part of what at present comprises the bread and butter of high street solicitors’ practices will be eliminated’.

His Honour identifies some areas of law where that’s clearly quite possible. One such area is family law where judges and judicial registrars of the Family Court of Australia and family law practitioners have been trialling a system called ‘Split‑Up‘ which can generate advice on how property from a marriage would likely be settled if the matter was determined by a court.

Justice Nettle also identifies that it won’t be long before computational law systems are capable of producing do‑it yourself wills, trust deeds, superannuation fund setups, business contracts, conveyancing documents, interventional order applications and other family law processes, and these will become widely available in Australia.

There is also considerable ongoing research into the development computational systems for assessment of intellectual property matters, and particularly software for automating the evaluation of patent and trade mark applications.  Developments of this nature may assist patent and trade mark attorneys, and patent and trade mark offices, in the often murky world of preparing and evaluating applications.

From the blockchain perspective, new methods of dealing with intellectual property ownership have been proposed utilising blockchain and ‘smart contract’ technologies to develop self-governing intellectual property registration, assignment and licensing systems.

However, relevantly for IP lawyers and their clients, his Honour considers it unlikely that computational law will have much impact on cases involving disputed facts ‘if only because of the vast range of variables involved in human fact finding and, therefore, the immensity of a task of constructing the kind of algorithms and databases which might conceivably replicate those functions.

One can see a reasonable argument that, and in my view, in say a patent infringement case where facts are disputed, issues of construction arise and infringement is to be determined on the basis of evidence, the presentation of oral evidence and other factors are likely to make the intellectual processes so complex so as to defy the ability of computers to determine it.  For now, it is beyond computers to determine IP infringement cases.  Not to mention further concerns whether parties to litigation are prepared to trust the assessment of a computer over that of human decision-makers (which has served well enough for many centuries).

However, that’s not to say that there aren’t some aspects of IP law that can’t be the subject of an artificial intelligence system such as automatic patent prior art searching based on key words, the comparison of two trade marks side by side, and others. IP lawyers will need to become familiar with these systems as they are developed and become technology advisors as well as legal advisors if they are to keep ahead of the curve and continue to offer value added services, such as those commercial and legal insights that can come only from experience.

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References:

Justice Geoffrey Nettle, ‘Technology and the Law‘, Bar Association of Queensland Annual Conference 27 February 2016.

I should thank Anand Shah, Barrister-at-Law, for making reference to Justice Nettle’s paper at a recent Legalwise Seminar that I chaired.  The paper is excellent and I encourage all to read it.