In this episode…

Does the ubiquity of artificial intelligence excite you, puzzle you, or give you pause? Whatever your reaction may be, there is no doubt that the advent of AI is changing the legal industry—and the world—forever.

Artificial intelligence is one of the most bizarre, confusing, and astonishing staples of the 21st century. In fact, the entire concept of AI feels like it’s been pulled straight out of a sci-fi novel! However, AI is even more complicated and far-reaching than most people realize. In reality, it is impacting not just the tech industry, but also the legal field—among others. So, what do litigators, attorneys, or other legal professionals need to know about the increase of AI in 2021 and beyond?

In this episode of Engaging Experts, Russ Rosenzweig sits down with Dr. Chris Mammen, a Partner at Womble Bond Dickinson (US) LLP, to discuss everything from IP law to the ethical implications of artificial intelligence. Listen in as Dr. Mammen talks about how expert witnesses benefit IP lawyers, whether or not copyrights can be applied to AI, and what the future of AI holds for attorneys and litigators. Stay tuned!

Episode Transcript:

Note: Transcript has been lightly edited for clarity. 

Host: Russ Rosenzweig, CEO and Co-Founder, Round Table Group

Guest: Dr. Christian E. Mammen, Partner at Womble Bond Dickinson 

Introduction: Welcome to Engaging Experts, the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.  

Russ Rosenzweig:  Hi, this is Russ Rosenzweig. I am the CEO and Co-Founder of Round Table Group and the host of this podcast series called Engaging Experts. Today, we have a great guest, Chris Mammen, an intellectual property litigator at Womble Bond Dickinson in Silicon Valley, and a thought leader on artificial intelligence. We are in the expert witness business here, and it is always great when we have a guest who is both an attorney and an expert. Before we get started, here is our sponsorship message.  

Announcer: This episode is brought to you by Round Table Group, the Expert on Experts®. We have been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.  

Russ Rosenzweig: Welcome, Chris. Happy New Year. 

Chris Mammen: Happy New Year to you. Thanks for having me in today.  

Russ Rosenzweig: Excited to have you here. Today, we will be meeting with Chris Mammen, an intellectual property litigator at Womble Bond Dickinson. This podcast will be discussing Chris’s background and his practice. We will chat about how Chris uses expert witnesses in the course of his practice. Then, we will dive into a very cool and interesting topic related to artificial intelligence and the copyrightability of things that are created by AI.  

Chris Mammen: And patentability.  

Russ Rosenzweig: And patentability, right. Maybe we can get you to talk about the differences between the two for our lay audience members. Let’s start with where it all began, Chris, after you graduated from Cornell Law School, you went on to Oxford to earn an advanced degree in legal philosophy.  I would love to hear more about that decision to delay the practice of law to study at Oxford instead. What was that like and how has it influenced your legal career?  

Chris Mammen: To some extent, it was an easy choice as I was getting ready to graduate from law school, and I was faced with the choice of being a first-year associate in a large law firm or going off and living a Brideshead Revisited fantasy life at Oxford. In that sense, it was an easy choice, but in another sense, I had spent much of my undergraduate career, and to a certain extent at law school, studying legal theory and legal philosophy. To have a chance to go spend some time at Oxford where H.L.A. Hart and Ronald Dworkin and John Finnis and other luminaries in the field had lived and taught was just a fantastic opportunity. I spent three years there working on a Ph.D. in legal theory.   

Russ Rosenzweig: Tell us more about it. I understand your dissertation was 400 pages. What was it about and what were some of the things that you studied there? I think a lot of your peer lawyers would be intrigued to know.  

Chris Mammen: Going to Oxford as a doctoral student meant that I was welcomed, given a seat in the library, and invited to check back in when I had finished my 100,000-word dissertation. I wrote my dissertation on using legislative history in statutory interpretation. It focused on digging into some of the legal philosophers, Supreme Court case law, and some comparative British case law on how legislative intent or the documents that are commonly associated with legislative intent are to be used in interpreting statutes. It was a fun and interesting topic.  I got a chance to bounce those ideas off some of the great professors there. Some of my fellow students have gone on to do great things. The life of a graduate student there was many hours in the library, but then hunting and dining in 18th-century dining halls, and all those kinds of things as well.  

Russ Rosenzweig: Interpreting legislators and their legislation is a hot topic today and is constantly on the news. How did you go from that to becoming an IP lawyer?  

Chris Mammen: To a very great extent, patent litigation is about interpreting language and interpreting legal texts Instead of statutes. It is interpreting patent claims and figuring out what the words of a patent claim mean. I think to a great extent the work I did and the methodologies that I studied and learned about as a graduate student helped in being a patent litigator and working on these questions of interpretation. When I finished at Oxford I moved to San Francisco and joined a law firm as a general litigator. This was in the late 90s, on the eve of the first dot-com boom and had an opportunity while there to start working on some patent cases. It was a great time to get into patent law and IP litigation. I learned from some of the best Silicon Valley IP litigators working at that time. That made the switch for me into IP litigation.  

Russ Rosenzweig: I too remember the dot–com era. Round Table Group was just launching, and it was an incredibly exciting time. We also spent a great deal of time in San Francisco and Silicon Valley during that era. Maybe you can tell us a little bit about how you or IP practice has evolved from then to the present. Many of our listeners are fellow peer business owners like me who run 10-to-100-million-dollar companies and are members of the IPO and various other organizations of business owners. I think they would be quite interested to hear about the specifics of your current practice, and how you might be helpful to executives and business owners who are facing IP issues.  

Chris Mammen: Sure. What has evolved in my practice over the years is a progression from working on one case at a time, or the massive cases, and focusing on the legal issues that I was assigned to work on as a junior lawyer to being attuned to my client’s business interests, and how IP helps serve their overall business interests. I have spent a good amount of time advising on IP strategy as well as choosing whether a particular dispute is better served talking about patents or copyrights, or trade secrets, and how those further the overall business objectives. The same is [true] when litigation happens or is inevitable – figuring out the best way to move through that litigation in furtherance of the business interests. I work in a wide range of fields. As a philosopher by training, I can’t claim specialization in any scientific field, but I think that has helped because, particularly in litigation, so much is about telling the story of the dispute and reducing the complex technology to something understandable by the judge and jury. Being able to stand in the middle of that role as a philosopher, a storyteller, mastering the technology has worked out well.  

Russ Rosenzweig: Chris, we have had the pleasure to walk alongside you and many of your colleagues at Womble Bond Dickinson and even its predecessor firms going back 25 years on the expert witness side of those IP matters.  The title of our podcast is Engaging Experts and part of our goal here is to educate fellow litigators on tools and techniques in the expert witness context. I would love to hear a story or two about how you use expert witnesses in your IP practice and some tools and techniques that you might share with your peers.   

Chris Mammen: I would say that, particularly in patent litigation, generally, experts are critically important. They are important to help us lay lawyers or nonscientific lawyers, understand the technology, and to develop theories of the case. It is important early on to get those experts involved and to begin working with them right away. A typical patent case will involve both a technical expert as well as a damages expert.  If we were to go out into the universities, or wherever else people have self-identified as experts, and try to find the one that has just the right technical expertise and the right disposition to be a good witness to help in a particular case, it would be like trying to boil the ocean. It is critically important for us to work with organizations like Round Table Group to help us locate and vet those experts. I will share with you one story from the very first patent trial in which I was involved. We had an expert, and the other side had a technical expert. They both got up on the stand and told their stories about why they were qualified, and the expert on the other side was a very distinguished professor. He got on the stand and talked about all the many dozens of technical articles that he had written, and published, and how many classes he had taught, and so forth. Our expert got up on the stand. He was also very distinguished, with not quite as many published articles, but he said, “I helped design the communication system for the Space Shuttle.” Wow! Just that made him relatable and made the jury perk up. He had their attention and the greater credibility for the rest of the trial. Helping to find experts who not only know their stuff but have that kind of perk helps. Credibility with the jury is key.  

Russ Rosenzweig: I love expert stories like that. Success stories. Thanks for the nice plug. It means double coming from you, being an expert, an Oxford-trained philosopher, as well as a litigator. Thanks for that. Chris, I wanted to dive into your current area of expertise and thought leadership, which is AI or artificial intelligence, which is kind of the hot topic du jour. We are constantly talking about it, not only in the legal context but [among] my fellow entrepreneurs and executives, this is all we talk about these days: How to integrate AI more effectively and efficiently into our various businesses across the board. Even here at Round Table Group where utilizing AI techniques assists us with the process of helping IP lawyers to locate and engage experts more efficiently. Even some of the tools that we use to find experts like Google Scholar, Microsoft Academic, A minor are chock full of cutting-edge AI technology and algorithms. Unlike when we got started 25 years ago, we have access to every article that’s ever been written on any topic. In 5 minutes, with the help of some AI, we can track down the authors who have written articles on it and get them on the phone, so it has transformed our world. Recently I watched a robot create a magnificent work of art and I feel like we are starting to live in the world that Isaac Asimov, one of my author heroes wrote about decades ago. Maybe you can tell us about copyrightability and patentability in the AI context. I am also curious if that robot’s piece of art is copyrightable.   

Chris Mammen: That is a fantastic question. It is a good place to start. There is so much that’s being done with AI, both in what I’ll call the creative arts, though I think that calling them that sort of presupposes an answer to the question. Just as referring to inventions by AI is also presupposes an answer to a question. This question of is the robot that has created a visual image, is it art, and is it copyrightable to some extent under current doctrine? The answer to copyrightability is probably no because in U.S. law the requirement is that there be sufficient human involvement for something to be copyrightable. If something is purely generated by the robot then it’s probably not. Now, if the robot has been programmed in a certain way by someone who has exercised creativity then it is possible that person may provide sufficient human involvement for it to be copyrightable in the name of the programmer as the artist. But, in the sense that the robot as the artist, [it is] not going to be something that can be copyrightable. One of my favorite illustrations about this point is a couple of years ago there was a case that got a lot of press. It’s referred to as the “monkey Selfie” case. There was a nature photographer that set up his camera in the jungles of Indonesia and left it just to sort of see what might happen.  Some photogenic monkeys came up and were playing with the camera and there were some photos recorded that looked like the monkeys were taking a selfie. It led to a series of litigation about whether the nature photographer could own the copyrights to those images. Animal rights groups got involved and argued that the monkeys should have copyrights to those works. Those cases led to some of the doctrinal rulings about needing to have a human artist and there is an extrapolation from that to the AI sphere.  

There are some other interesting questions about copyright law that I will touch on, and then we can talk a little bit about patent law. There is a project going on right now called Next Rembrandt, and it is an organization that has used AI to train their models using Rembrandt’s corpus of work, to create another image that looks very much like the style of a Rembrandt painting but is different. It also provides many interesting questions, which if we were to say, if it is copyrightable, who is the creative force behind that? Is it the AI or is it Rembrandt himself, because all the creative inputs that it’s been trained on were all Rembrandt’s works? And if it is Rembrandt and under our current copyright law valid for the life of the author plus 70 years? Then, wouldn’t that copyright have expired hundreds of years ago before the work came into existence? We get sort of tied up in these pretzels that the philosopher in me loves to entertain.

Russ Rosenzweig: There are a lot of art lovers, myself included, back when the world was open, and I was regularly traveling the country to meet with our beloved clients and expert witnesses in all our great cities. I would always make it a point to visit the local museum and, had this technique where I would, when permissible, take a picture of my favorite artworks, and this included all the Rembrandts. I have this collection of just self-taken photos of Rembrandts among other artists from museums around the world, and I set up this private little system where they show up randomly on my screen. Just so I can take a break and enjoy a piece of art periodically throughout my day. I have, as a layperson, become good at guessing who the artist is when shown a piece of art. If you showed me something from Next Rembrandt that was done by the algorithm and as I have been enjoying pictures of 100 Rembrandts over the past couple of years, I would just look at it and say, “Rembrandt”. Tell us more about some of the nuances regarding copyrightability along these lines. As AI just becomes more and more commonplace and talented.  

Chris Mammen: That raises an important question and that is if we assume that something similar is being done for a living artist, whether it’s a visual artist or musician, and we train an AI on their corpus of work and then can create at the speed and volume that a computer network can create, we can create a whole bunch more works in the same style. What is that? What does that imply? What do you know? What flows from that? One inference that could jeopardize the livelihood of the artist, the human artist, by deluding the marketplace or something else is whether the use of that corpus of work [like] the collection of Rembrandts or all of Britney Spears recordings, or whatever, as training data. [Is] that is fair, to use that as training data for the creation of additional AI-created works? Some questions arise out of that. Another thing I wanted to comment on is [the] way in which AI algorithms can sort of detect what makes something characteristically a Rembrandt, or characteristically Bach or Mozart music. I’ve heard some examples of an AI-generated Bach work [when] compared with an actual Bach work, [that] most people will pick the AI-generated one because it’s got all the checkmarks, elevated to a caricatured level up. What you look for, if you’ve taken, like I have, one music appreciation class to spot the work, and so you know that’s something else to sort of be interested in as this continues to develop.  

Russ Rosenzweig: For those of our listeners, Chris, who want to go deeper on this topic and legal aspects, where can they reach out to you? Maybe you have suggested readings etc.  

Chris Mammen: Absolutely. I would be happy to have folks reach out to me either on LinkedIn or at my email address chris.mammen@wbd–us.com.  

Russ Rosenzweig: Before we go, I want to talk about patent law too in the context of AI. Do you want to share some kind of cutting-edge thing going on in that realm? 

Chris Mammen: Yeah, when we talk about AI in the patenting realm, there are three buckets that we can divide things into. One is using AI as a tool as a research tool. The chemist researcher can identify promising drug compounds for exam quicker; it is a research tool. There is another bucket, where AI is the invention. Think about all the technology that goes into self-driving cars, speech recognition tools, or other things like that. The third area I’ve been spending a lot of time on is the question of whether AI can be an inventor. We spent a lot of time talking about AI and copyrights. There is a similar discussion going on about AI and inventorship. A couple of years ago Professor Stephen Thaler and a law professor from the UK named Ryan Abbott, filed some patent applications in the name of an AI called “Dabus AI”. These inventions in these applications drew a lot of headlines about a year and a half ago. The patent offices in the UK, the European Union, and the United States all eventually rejected the patent applications for two reasons. One was that in every one of those jurisdictions an inventor must be a human. The second reason, which gets at the practical questions asked, “Dr. Thaler, you are filing this application on behalf of Dabus. How do you know that Dabus wanted you to file this patent application? Did Dabus tell you?” The answer to that is no because we don’t have general-purpose AI’s that are sentient beings that can express themselves in that way and sign contracts and have legal agency.  

Russ Rosenzweig: Not yet.  

Chris Mammen: That’s right. Someday we may well, but for right now the doctrine does not support AI as an inventor. It has led to a debate about whether this is how it should be. On the one side are what I call the humanist approaches, where the purpose of patent law, and IP law, in copyrights and patents is to encourage creativity and inventiveness as human activities. The other side is more of a question of industrial policy that regardless of how we got there, if we have something new, useful, and valuable then it should be protectable and protected against knockoff copying.  I think we will expect to see over the next several years, as AI continues to improve, maybe get to the point of having a legal agency. Maybe not. We will continue to have a debate between those who advocate the humanist creativity inventiveness approach and those who advocate the industrial policy approach.  

Russ Rosenzweig: Which side would you say you’re on?  

Chris Mammen: As a philosopher, I tend to come down on the side of the humanists.  

Russ Rosenzweig: I think I agree. Do you have any last thoughts? Any cutting–edge new developments at the intersection of AI and the law and philosophy that you’d like to share with our listeners? 

Chris Mammen: Well, shifting topics slightly in talking to those of the listeners who are practicing lawyers or working with practicing lawyers, there’s also a tremendously interesting arena where we use AI tools in our practice and questions of legal ethics and related issues that ally out of that intersection of using those tools in practice. That is a subject for a whole additional podcast episode, but it’s also interesting.  

Russ Rosenzweig: That is exciting news for me, because you know, the industry of the law is not always the first mover in terms of new adopting innovation. I wasn’t aware that AI is now front and center, even within the very process and practice of the law.  

Chris Mammen: It has been there for a long time in some areas. Legal research tools have been moving ever closer to or ever deeper into AI tech tools. Electronic discovery has made extensive use of AI, but it’s getting farther and farther into various aspects of practice and saw something not long ago that purported to be something that could write briefs for you or at least generate a rough outline of the brief. Based on AI tools I don’t think we are at the point where associates are going to find competition from AI lawyers, but there are a lot of things that we can harness in our practice.  

Russ Rosenzweig: We were recently approached by a startup that is building an AI that claims that if you plug in a complaint, out will come the perfect experts to be engaged. I was not sure if I should feel fear or feel I should buy them right away or laugh about it. It is interesting how quickly it is developing in so many fields.  

Chris Mammen: You should probably feel all three of those.  

Russ Rosenzweig: What a rich discussion, Chris. I enjoyed the breadth and depth of our topics. Thank you so much for participating.  

Chris Mammen: Thank you for setting this up. I enjoyed having the opportunity to talk with you and your listeners.  

Russ Rosenzweig: Chris Mammen, ladies, and gentlemen from Womble Bond Dickinson in Silicon Valley. Thanks for listening to the Engaging Experts podcast. See you next time.  

Dr. Christian E. Mammen, Womble Bond Dickinson

Dr. Chris Mammen is an intellectual property litigator and a thought leader in the field of artificial intelligence. Currently, he is a Partner at Womble Bond Dickinson (US) LLP, a transatlantic law firm that provides services to corporate, individual, and nonprofit clients. In addition to this, Dr. Mammen is also the Co-Founder and an Executive Board Member of the Oxford Entrepreneurs Network, which connects Oxford-educated entrepreneurs, investors, and mentors.