AI-Assisted Drafting – Panacea or Pandora’s Box? *

AI-Assisted Drafting – Panacea or Pandora’s Box? *

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1 hour of ethics MCLE will be requested.

The use of Artificial Intelligence while engaging in the practice of law is fraught with peril and pitfalls from both a legal and an ethical standpoint. The ethical concerns presented by the use of artificial intelligence are not insurmountable, but do require practitioners to engage in serious forethought and consultation with clients prior to using these tools.

Understanding how any particular AI solution collects, stores and uses the information provided seems a prerequisite to considering issues like confidentiality, and ultimately communicating with clients in order to obtain fully informed consent.  For example, if you use a particular AI solution to craft a portion of a description for a patent application, will that AI internalize the information provided and continue to include that information as part of its corpus that it will learn from and pull from when engaging with future users? And where is the server located and data drawn from and communicated to; will this open up liability for an export control violation?

The use of artificial intelligence (AI) tools to draft patent applications, draft office action responses, to draft other legal documents submitted in court, and to proofread is a matter of increasing importance to the industry as sophisticated tools roll out and into use, and practitioners are pushed to deliver more for less.

This panel will start the conversation defining AI so everyone is on the same page, starting with the classical definition of AI offered by Robert Turin, then discussing pure AI, and moving to define AI as it is understood today (which is often more akin to machine learning (ML) and which presents the most worrying privacy, confidentiality and ethical concerns for lawyers). This panel will discuss:

1. The substantive legal pitfalls, and damage that can be done, by using an AI drafting solution (e.g., incorporating competitor information and data into an application potentially making the competitor a co-inventor / co-owner).

2. The duty of confidentiality and requirement for practitioners to adequately protect client information and avoid even inadvertent disclosure. See ABA Model Rule 1.6 and USPTO Rule 11.106.

3. The requirement to get informed consent from clients, and what specifically that looks like prior to using AI assisted drafting or searching. See ABA Model Rule 1.4 and USPTO Rule 11.104.

4. The requirement for managing practitioners to supervise those who work for them, as well as non-attorneys and non-practitioners employed or engaged to facilitate the representation of the client. See ABA Rules 5.1 et seq. and USPTO Rule 11.501 et seq.

5. Satisfying the duty of candor required under USPTO Rule 11.106(c) and the duty of candor toward a tribunal under ABA Model Rule 3.3.

6. Potential and actual conflicts of interest created by relying on the incorporation of third-party material into a patent application. See ABA Model Rules 1.7 through 1.10 and USPTO Rule 11.107 through 11.110.

7. Those situations and circumstances where it is likely ethical, permissible and even wise to use AI drafting solutions, and what those solutions should be in order to properly silo sensitive client information and thereby protect it from inadvertent disclosure.

Materials

The Ethics and Practicality of AI Assisted Patent Drafting