Judges at the England and Wales High Court and Court of Appeal discussed some of the opportunities and dangers of artificial intelligence use during a discussion at the INTA Annual Meeting today, May 5.
England and Wales Court of Appeal judge Lord Justice Colin Birss was joined by Mr Justices Richard Meade and James Mellor, who both sit in the England and Wales High Court.
Emma Himsworth, a barrister at One Essex Court, who sits as an appointed person at the UKIPO, was also on the panel.
The discussion was moderated by Arty Rajendra, partner and head of IP disputes at Osborne Clarke.
Speaking about his own use of AI, Lord Justice Birss said he has started deploying AI to sense-check his judgments.
He explained that once he has finished writing a judgment, he will put it into AI and ask it to highlight any inconsistencies between paragraphs or different sections of the proposed judgment.
Sometimes, the AI tool has failed to understand the point he was trying to make, he said, but on occasion, it can flag passages where a rework may be necessary.
“In that case, I may go back and reword it slightly so that it’s clear exactly what was intended,” he added.
However, he stopped short of endorsing the use of AI to craft judgments from scratch.
“I wouldn’t expect that any of us [in the judiciary] is using AI to actually write their judgment,” he added.
Where entirely AI-crafted material can cause a headache, however, is in submissions, including witness statements. These are sometimes filed by litigants in person (LIP), who may not always be able to afford access to justice.
Mellor referenced the litigation surrounding Bitcoin, which centred on whether computer scientist Craig Wright was in fact Satoshi Nakamoto, the self-styled creator of bitcoin.
Although Wright was not a LIP, a 500-page witness statement was filed in that case, said Mellor, much of which “had clearly been written by AI”.
One way the court is trying to handle this, the judges said, is to make sure that there is a disclosure if AI has been used at any point in the crafting of witness statements.
During the discussion, the judges also explained why they think the UK is an attractive place to litigate.
Meade, another judge at the England and Wales High Court, pointed to the court’s reputation for rigorous procedures, a specialist judiciary and relatively quick decisions.
“The options for procedures like document discovery and oral examination make it quite attractive. Further, we have a specialist judiciary that is often willing to try and tackle new things.”
Deal roles
In another session later in the day, panellists discussed the role of IP lawyers in wider business activities – particularly corporate carve-outs, M&As and licensing activities.
The session was led by Chehrazade Chemcham, founder of Brands Lex, which provides brand innovation and legal support to businesses. Cheryl Foytlin, assistant general counsel of trademarks at Johnson & Johnson and Oliver Watson, senior IP counsel at Novartis, joined the discussion.
One of the questions posed was how IP lawyers can guard against deferred risks from joint ventures.
Watson said there is a risk if you don’t look far enough into the future. “Spend time thinking about what needs to happen in the short term after a joint venture,” he said.
The audience, largely in-house counsel, was then asked to vote on how early in a transaction they are pulled in.
Around two-thirds of respondents said they were pulled in during due diligence, with the remaining respondents saying it was a mix between right at the start (at the term sheet stage) or at the final stages.
Foytlin gave some examples of when collaboration between in-house business development teams works, and when it doesn’t.
“If it’s a billion-dollar deal where trademarks and brands are a clear driving factor, we get pulled in,” she explained.
However, there have been risks when a buyout has involved a smaller company, particularly if it's not clear if the company being acquired has products or IP.
In those instances, in-house IP lawyers might not get pulled in until later in the process when earlier involvement would have been useful, she said.
Another area that can cause uncertainty is deciding how to continue with general portfolio management when a transaction is pending.
Foytlin pointed out that general portfolio work is often done by paralegals, in conjunction with a senior lawyer.
“You should always make sure the responsible paralegal has the confidential information. They need to be in the know for general portfolio work.”
Question of the day
Each day, our team has been asking delegates a set question on how they make the most out of the Annual Meeting.
Today, we asked delegates what the single most effective way is they’ve won new work at INTA.
Albert Tsui, partner at AnJie Broad Law Firm in China, said “staying actively engaged” in conference events and conversations, and positioning himself as a collaborative team player has helped win work.
“Being visible and involved in the global IP community builds genuine trust and connections, as peers recognise we all support and refer one another within this close-knit industry.”
Latha Nair, partner at K&S Partners in India, has been attending INTA since 2002.
However, she has a word of warning. “I am sorry to disappoint you that there are no silver bullets to win new work at INTA,” she told Managing IP.
“In my experience, brand owners or foreign associates will shift their work to new agents only when they are dissatisfied with their present counsel, or they have a strong personal connection with you that they want to favour you, or you have a niche expertise that your competitors can’t match.”
However, there is still hope.
She added: “New work can come your way by referrals from your existing clients when you service them well and exceed their expectations. But that is also not an overnight phenomenon.”
Livia Pasqualigo, partner at Buzzi, Notaro & Antonielli D’Oulx in Italy, recommends displaying a “human touch”.
“In a short meeting, you can understand if someone is skilled or not. But showing you have the empathy coupled with the skills is key,” she said.
“The IP community is somewhat unique in its friendliness and sense of community. You don’t necessarily get that with other professions, even in the legal sector.”
The INTA Annual Meeting runs from May 2 to May 6 at the ExCel in London.
