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February 27, 2023


My concern about using ChatGPT in patent drafting is that the person assigning the writing task to ChatGPT is giving access to both the task and the written response to Open AI (the owner of ChatGPT). Presumably these events are occurring prior to the filing of the patent application.
If for some reason the drafting of the patent application takes more than a year, the early ChatGPT drafting may constitute information otherwise available to the public before the effective filing date of the application. In other words, prior art.


This is indeed an issue. See the second link in the article for a more thorough discussion.


ChatGPT drafting has to start from a "prompt", which in the case of patent drafting has to be a description of the invention provided by the patent attorney. But communications with ChatGPT are not private, as set forth in OpenAI's terms of use. This entails the risk that the prompt fed to ChatGPT may be considered public disclosure by a court, as explained by Aaron Gin and Yuri Lewin-Schwartz in their Patentdocs post of 6 February :

"As such, patent attorneys must take care not disclose confidential information to publicly-accessible large language models like ChatGPT. A court could consider the content of the messages as public disclosure of the invention because OpenAI has no obligation to secrecy."

"For example, when writing a patent application, one might describe (to ChatGPT) how an invention can be used".

Mike, at what point is the descriptor/ChatGPT user creating prior art here? I'd argue (as a layman) that submitting the description of an invention to ChatGPT is no different than handing a paper document to a legal practice or more broadly some other 3rd party that can help determine patentability, run a search, and/or draft the application. Inventors generally have formal engagement agreements in place with 3rd parties prior to sharing such information on the invention. And now a two-part question for you:

1) Is a ChatGPT user who submits a description of an invention creating prior art for the invention in doing so? If not, why not?

2) If so, would having a formal engagement agreement in place with the endpoint (MS/OpenAI, etc) that establishes IP ownership, confidentiality, and/or the nature of the engagement resolve that? Why or why not?

Interested in your take on this.


The answer to both questions is in the agreement between the user and the entity operating the LLM. In the case of ChatGPT, that agreement does not provide confidentiality and thus risks public disclosure of the submitted invention description.


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