Digitalization Of Patent Prosecution, Using Blockchain & Ai
By Sucheta Chatterjee Sethi
The patent prosecution has developed over the years with the advancement in technology. The changes in the representation of the invention before the patent office can map to three periods in which the invention came to materialize, textualize, and digitalize.
- Transformation of patent Office
The transformation of the patent office, through the ages, can be explained through the metaphor of what it became. Early inventors had to submit working models to the patent office. In the 19th century, the ability to make miniature working models that could be presented as verifiable proofs of invention led to the patent office becoming a “museum” of the prior art. Later, the textualization of the invention, the patent specification, and the manner in which it could be recorded, stored and accessed made the patent office a “library” of records. With the digitalization of patent office records and the prospect of empowering them with AI, the patent office of the future could become a “machine”.
The historical evolution of the patent office from a museum to a library and then to an AI machine has profound implications on the manner in which patents are searched and drafted.
- Digitalization of Patent
The digitalization of the invention refers to the process of converting the patent specification into a digital form. The digitalized invention, or more precisely, the digital representation of the invention before the patent office, when stored as a transparent, trustworthy, and secure record by means of technology like the blockchain would make it easier for establishing disclosure, priority, and ownership of inventions.
The digitalized invention will not be a mere digital version of the textualized invention, i.e., an algorithmic version of the printed document.
Patent systems that recognize and attribute priority based on blockchain disclosure would make disclosures public, immutable, and trustworthy, thereby reducing the need to make the first disclosure to the patent office to preserve priority.
The digitalized invention would facilitate simultaneous filing in different jurisdictions and will not require an 18-month secrecy period for publication. We have seen the patent system move away from the first-to-invent system to the first-to-file system, a move necessitated by the changes in technology that facilitates record-keeping and efficient filing.
The digitalized invention would take the patent system to the next phase of patent filing: a first-to-disclose system and the first disclosure need not be a disclosure made to the patent office.
The digitized invention would also make the digital representation of the invention amenable to analysis by AI systems. When the digitized invention can be subject to an AI system, machine analysis of the invention description would be possible. Machine prosecution — AI-enabled prosecution of the digital representation of the invention — would change the manner in which the traditional tests of patent law are applied: the analysis of novelty, inventive step, fair basis, antecedent basis, succinctness, enabling disclosure, etc. would change. Some of the changes to the traditional tests will occur due to the change in the concept of the person skilled in the art. When AI-enabled systems are accessible to the person skilled in the art, the manner in which we understand the standards of novelty, inventive step, and enablement are bound to change.
The tasks that can be efficiently and completely performed by machines and those that would require further human intervention will necessitate such a bifurcation of the analysis.
A decentralized patent office of the future will specialize in the functions that have to be done solely by humans, once the machine analysis is done, thereby making patent prosecution quicker, efficient, and less susceptible to errors.
- The Way to Represent the Invention
The digitized invention is a digital representation of the invention with the use of new technologies. While it is hard to predict the future acceptance of the new technologies, any technology that can have an impact on the following three aspects can impact digitized invention.
For the present, emerging technologies will influence the digitalized invention in three aspects:
(1) The manner in which it is created,
(2) The manner in which the invention is presented in the digital medium
(3) The manner in which the representation of the invention is verified.
- Universal, User-centric, Authenticated Disclosure of patent
This system allows the user to create the first version of the representation of the invention and to present the first version of the invention to the world, at his or her discretion. For the world to verify and check the authenticity of the invention without the need for a third-party verifier, the technology used should be tamper-proof, should enable verification, and should be capable of creating an unalterable timestamp.
More importantly, the source on which the first disclosure is made should be dynamic enough to form the ground for every other action, be it prosecution actions, licensing, revocation, etc.
So that every transaction relating to a patent can be found in one place. By implementing this technological change, the entire public information on priority documents, prosecution history, amendments, licensing, and termination, can be kept in one source.
- Impact of BlockChain & AI
The impact of new technology on patent prosecution can be studied in the manner in which two leading technologies of our times, namely blockchain and AI affect the development of prosecution. The new technologies will affect patent prosecution in two significant ways. First, it will enable machine prosecution, i.e. prosecution of patents using AI and machine learning without human intervention. Second, the wide use of these technologies and the limited role played by humans will result in the decentralization of the functions of the patent office.
Both machine prosecution and decentralization of the patent office functions will have a bearing on how the traditional concepts of novelty, inventive step, disclosure, and enablement are understood.
The patent system, which uses blockchain and AI, will be a decentralized, user-centric system. Just as blockchain is expected to fundamentally change the banking system by eliminating the banks as the intermediaries who handle money, a similar change can be expected in the patent office with the advent of machine-assisted prosecution of patents. However, unlike banks, patent offices are not just repositories of intellectual property; they are also the arbiters and assessors of inventions. Though we can expect the final discretionary functions of granting and rejecting patents to be done by humans, the structure of the patent system would be a decentralized one. As publicly accessible distributed ledgers, blockchain can make record-keeping more efficient and AI and machine learning can constantly evolve and improve with the systemic needs. The digitalized invention will revolutionize the patent system by eliminating its human frailties: time-delays, fraud, and judgmental errors, all of which have plagued the existing patent system.