AI and big data will drive the future of trademark services but use in prosecution work is a long way off

Friday, June 15, 2018
World Trademark Review

AI and big data continue to generate significant buzz in the IP world, with industry experts confident that demand for advanced data analytics will continue to rocket. However, in terms of substantive prosecution work, there is no expectation that such services will replace the work of attorneys any time soon.

From an IP service provider perspective, Rob Davey, senior director of managed solutions and global markets at CompuMark, firmly believes that AI is both the present and future of the business: “We definitely see it as an integral part of the future, but it is already something we have been doing for many years – be that as part of the background of our evolving watching service or from our latest image recognition product.”

We have previously written about fears over how AI could take on certain legal functions, potentially replacing the human hand. However, Vincent Brault, senior vice president of product and innovation at Anaqua, points out that AI and big data are already used in a number of productivity tools to help attorneys draft, file and respond to office actions and in technology-assisted analytics. However, he argues that that even the best AI available currently is only going to be complementary to the work of an attorney: “For example, the latest AI convolutional network search results are great compared to traditional semantic and/or natural search language tools, but inferior to human work. Even basic human intervention will exponentially improve search results.” So far, he argues, advanced analytics applications have only served to increase productivity and allow attorneys to focus on the substantive elements of their work.

However, Davey does see a potentially expanded role for AI, arguing: “AI taking over the work of lawyers could happen in the future but I do think it’s more likely that AI will continue to go down the road of supporting the work that they do and not replacing them. I don’t see the people in the trademark world being replaced by machines but in 30 years’ time it could be a completely different world.”

In the medium term, then, the consensus is that big data analysis and AI will be aids rather than threats, and the question turns to how far they can be employed to improve practice. Tim Lyden, partner at Hogan Lovells, tells us: “These type of augmented services to clients really stand out, and I’ve noticed that the concept continues to gain traction with each passing year. There is a ton of information available out there, be that from IP offices or ICAAN or other organisations, so the extensive use of big data is something that has to happen in the trademark space. It’s a huge business opportunity for both law firms and service providers.”

A number of law firm practitioners have raised the question of whether advanced big data analysis can be applied to prosecution work. At present, service provider offerings have analysed data related to the way federal judges treat trademark cases. While litigation is a big-ticket expense, the resulting question is whether similar data analysis can be applied to trademark prosecution and/or oppositions/cancellation proceedings – and then used to guide – or even automate to a large degree – prosecution work.  

There are two significant barriers to this. The first relates to cost and whether prosecution-focused data tools can be developed by service providers in a way that result in a profitable product. Second, even if that is the case, at present there are questions over how far the technology could then be used to automate prosecution practices. Davey observes: “What we don’t see yet is a useful and cost-effective application of AI in customer-facing tools. [Additionally] at the moment, there is a lack of sophistication in the legal knowledge that would let any AI take over the work of a lawyer. When it gets slightly more complicated than basic prosecution work, there’s simply this huge amount of skill that is not data-driven.”

AI and big data use in sophisticated prosecution work, then, is one for the future. The focus today for service providers, according to Davey, is on gathering competitive intelligence and using it to support, not replace, the work of attorneys. “It is about simplifying your client’s problems and learning to be a part of their ecosystem. Big data is definitely having an impact and we see the potential in it, but it is not so much on the prosecution side as it is on gathering intelligence, by which I mean finding out what people are getting registered, what your competitors are doing, success rate metrics, et cetera.”

There is no question that the manipulation of big data is driving growth in the trademark industry for both service providers and law firms. However, there is a consensus that cost-sensitivities and software sophistication will continue to hold back the full use of AI for the foreseeable future. The first to crack the code for AI use in substantive prosecution work will likely leap ahead of competitors and –while seemingly a long way off – the surge in M&A and private equity activity in the industry could result in an arms race to be the first to make the next great leap.