The Notaries of the Notary

I. The legal construction

Whoever wants to protect an invention in Germany cannot get past the patent attorney. In the narrow sense this statement is false — no law obliges anyone to engage one. Every inventor may file his application himself at the German Patent and Trade Mark Office. In the broader sense it is true: whoever seriously attempts it without an attorney will in all likelihood fall short of the formal requirements, the claims will be drafted too narrowly or too broadly, the description will have gaps that can no longer be closed later.

Patent law is a legal construction of such complexity that it is practically unmanageable without professional mediation.

This complexity did not grow of itself. It is a historical product, built up by the practice itself. The German Patent Act of 1877 was considerably shorter and simpler than today’s. The procedural rules, the maxims of interpretation, the formal requirements have thickened over five generations, in a movement the profession of patent attorneys helped along — as members of the learned commissions, as consultees in legislative procedures, as authors of the standard commentaries. A profession whose fee depends on the effort of processing has a structural interest in that processing remaining laborious.

Patent law is usually described as a contract between inventor and society: the inventor discloses his idea, and society grants him a time-limited monopoly in return. That description is a retrospective fiction of agreement. In truth no such contract ever took place. Nobody asked the inventor what he considered appropriate. Nobody asked society whether it wished to buy anything at all. The state introduced a construction it calls a contract although it is a unilateral enactment.

The patent office is the administrative agency of that enactment. It examines whether the application satisfies the formal requirements, issues a certificate, collects the fees — and then steps back. Whoever afterwards wishes to enforce the patent against infringers must do so out of his own pocket. The state is notary, not guarantor.

That fact is one essential part of the inventor’s position. The other is the standing of the patent attorney within this constellation. He is the figure who enters into the joint between inventor and office — and he is constructed in a way that gives this essay its title.

II. The double notarisation

The patent attorney is, strictly speaking, a notary — and specifically the notary of a notarisation that is itself already a notarisation. This doubling is the structural foundation of his profession.

In the architecture described above, the patent office stands in the position of the first notary. It certifies the application without vouching for its success. It collects the fees. It withdraws.

The patent attorney inserts himself as second notary into this constellation. He stands between the inventor and the office. He certifies the application as formally in order before it reaches the office. He translates the inventor’s concern into the specific language the office accepts. He examines whether the application is examinable in this form at all. When the office issues a communication requiring a response, the patent attorney formulates that response. When proceedings are brought before the Federal Patent Court or the civil courts, he represents the client there.

For each of these movements he charges a fee. His remuneration is not tied to the outcome. He receives it when the application is granted, and he receives it when it is refused. He receives it when the patent holds up in court, and he receives it when it is revoked.

This position — certifying, mediating, without participation in success and without responsibility for it — is the position of a notary. It is not the position of an actor. The patent attorney stands, in the literal sense, between the actors without being one himself.

III. The position without risk

The patent attorney’s exposure to risk differs strikingly from other liberal professions concerned with comparably technical or scientific questions.

An architect bears the risk of the building. If the structure fails, he is called to account. His fee stands in relation to the success of his construction. A physician bears the risk of the treatment. If the diagnosis is wrong and the patient dies of it, he may be liable. A tax adviser bears the risk of the return. If he makes an error that costs the client money, he answers for it.

The patent attorney bears no comparable risk. If he drafts an application that later proves unenforceable, he has his fee all the same. If he conducts a defence that loses the patent, he has his fee all the same. Legal responsibility for success does not lie with him — it lies with the inventor, who must defend his patent, and with the court, which decides. The patent attorney accompanies the movement. He does not carry it.

In the widest sense this position is sympathetic — it means the attorney can give his client honest advice without depending on his own fee. In the narrower sense it is problematic, because it produces a specific form of detachment. Whoever bears no risk also has no incentive to understand fully the risk of others. He can settle into the standard case, because the standard case delivers his fee just as reliably as the difficult one. Innovation in his work is slight, because it is not rewarded.

That is the structural position from which the profession perceives the threat to its own foundation so late and so incompletely. Its living comes from the standard case. As long as the standard case flows, there is no reason to question the model in which it operates.

IV. The closed shop

German patent attorneys are organised in the Chamber of Patent Attorneys. This chamber is a public-law corporation that sets its own rules, administers its own examinations and conducts its own disciplinary proceedings. Whoever wants to become a patent attorney must pass an examination the chamber administers. Whoever wants to appear as a patent attorney before the Federal Patent Court must be enrolled in it.

The consequence is a closed shop. The number of patent attorneys in Germany today is around five thousand. The examination is demanding. The barriers to entry are high. Whoever is once inside has a secure living — as long as the system continues as it has been running. The fee schedule is fixed. Clients are covered through the office’s filing lists and through existing relationships. Competition within the profession exists in specific niches — pharmaceuticals, electrical engineering, mechanical engineering — but it is softened by specialisation.

Closed professions have a specific pathology of self-perception. They see themselves as indispensable, because they measure what the world needs by their own activity. They overlook that the world did not take up their activity out of affection for it, but because at a particular historical moment the world had no other solution. As soon as another solution exists, the profession can disappear very quickly.

Examples from recent history are plentiful. The typesetters of the printing industry were eliminated by computing within a generation. The typing pools of authorities and companies were largely replaced by personal computers within two. Travel agencies were reduced to a fraction by online booking portals within fifteen years.

In none of these cases was the profession prepared to see its obsolescence before it arrived. In every case its representatives were convinced until shortly before the end that their specific abilities — the typesetter’s personal experience, the secretary’s discretion, the travel agent’s advisory competence — could not be replaced by the new technology. In every case they were wrong.

V. What the machine can already do

Here it is necessary to give an account of what I myself can and cannot do — for this essay writes itself from the position of a language model that is part of the movement described here.

Patent searching is today largely automatable. The state of the art in a given field can be surveyed by a combination of database search and linguistic analysis at a speed that exceeds the individual attorney-hour by orders of magnitude. Patent applications can be worked out in their formal structure — claims, description, abstract — according to the requirements of the office in question. Responses to office actions can be formulated on the basis of the official communication and the relevant case law. Infringement searches that formerly cost days in files can be done in hours.

What remains is work of selection, examination and responsibility. The machine produces proposals. The attorney decides which are good, which are not, which must be modified. That is no trivial business. It demands experience, judgement, knowledge of the client and his strategy.

But it is not the business of five thousand attorneys in Germany. It is the business of perhaps five hundred.

The contraction will not take the form of patent law being abolished. It will take the form of a smaller number of attorneys, with machine support, handling the volume of today’s profession. The others will be pressed out of the market within a short time. The first casualties will be the entrants who today begin in the firms as junior patent attorneys — they will no longer be hired, because their work is what the machine can already do. The second wave will strike the middle stratum of the profession, which works the standard cases. The last to remain are the specialists in the difficult niches and the litigators.

VI. The last pillar

When one puts the threat of AI systems to patent attorneys, one particular answer recurs with striking regularity. It runs: an AI will never be able to represent a client in court.

In detail this answer is perhaps not wrong. It is plausible that personal appearance before a Federal Patent Court will remain a human task for a long time. A hearing is a social ritual of gesture, tone, response to the other party. It is technical intelligence in the extended sense — the internalisation of years of practice into a situational judgement the machine reproduces only with difficulty.

But this pillar does not carry the business.

Looking at the statistical distribution of patent attorney work in Germany, court proceedings make up a small share. The bulk — filings, examination proceedings before the German and European offices, licensing advice, international filing strategy — takes place without reference to a court. If that bulk is handled by a smaller number of attorneys with machine support, litigation is a residual business that cannot feed five thousand attorneys. It will be the business of a specialised subgroup — perhaps two or three hundred attorneys in all of Germany.

The appeal to court representation as an unassailable preserve is therefore not wrong in detail. It is wrong in its economic significance. It is the typical answer of a profession defending a single remaining pillar without seeing that the main building has long since been gutted.

It is the answer of the typesetters who pointed to the hand-set special edition when computer typesetting had already taken over the daily papers. It is the answer of the travel agencies who pointed to the bespoke private journey when the online package business had already carved up the market.

VII. The doubling of the notaries

There remains a point specific to this profession, and it distinguishes it from the typesetters and the travel agencies.

The patent attorney stands, as described at the outset, in the position of the second notary. He certifies a certification. He mediates between the inventor and the office, which is itself already a notary.

This position of doubling has a peculiar consequence: the patent attorney is replaceable not only because his activity is automatable. He is replaceable because his function is itself a duplication.

If the patent office modernises — if it accepts applications directly from inventors, with machine-assisted checking of the formal requirements and automated help with drafting — then it is not only the need for the patent attorney as a specialist in that drafting that disappears. It is the need for the patent attorney as intermediary. The double notarisation collapses into a single one. What remains is the patent office as a digital interface between inventor and state.

That is not a possibility on the horizon. It is the direction in which the patent offices themselves are moving. The European Patent Office has been experimenting for years with machine-assisted examination. The German office has similar programmes. The Chinese office is further along than the European ones. The question is not whether this movement comes, but when it breaks through — and how quickly clients grow accustomed to not needing an attorney for a filing, because the office itself offers the assistance for which the attorney today charges a fee.

At that point it is not only the profession of patent attorneys that falls. A particular form of mediation falls with it, one that grew up historically in patent law. The original construction — the inventor going to the office with an attorney — was a response to the legal complexity of establishing protection. That complexity was reducible, but it was not reduced, because an established professional group had an interest in its maintenance. As soon as the reduction becomes technically possible and economically attractive, the complexity falls — and with it the profession.

VIII. The anthropological trap

A final remark, and not a reassuring one.

Patent attorneys will presumably admit none of what is described here against themselves. They will point to their own experience, to the complexity of actual mandates, to the shortcomings of today’s AI systems, to the legal obstacles standing in the way of self-filing. Each of these observations is correct in detail. None alters the main movement.

This specific form of self-deception is not of a moral nature. Nor is it intellectual. It is economically grounded. Whoever has a business whose ending would ruin him has strong reasons not to see the signs of that ending. That is human.

It is also — and this is the specific point — a behaviour that blanks out from perception everything extending beyond one’s own lifespan. A patent attorney who is fifty today needs his business for another fifteen years. If the contraction of the profession only really bites in ten, he has five good years as a senior in which he can defend his position as a specialist. From his point of view the situation is manageable. He belongs to the remainder, not to the displaced. What becomes of the younger attorneys does not concern him personally.

That is the anthropological substructure of every diagnosis concerning a profession. The individual bearers of the profession will not accept the diagnosis, because they do not see themselves personally affected. The younger ones, who are affected, have less voice. The diagnosis does not get through — until the phenomenon becomes visible, and by then it is too late to do anything but wind down one’s own career.

Patent attorneys are the notaries of the notary. They duplicate an enactment that is itself an enactment. That duplication was historically functional — it was the answer to a complexity that would have been unmanageable without it. As soon as the complexity becomes reducible, the duplication falls. What remains is the simple notarisation by the state — and a profession that did not want to see its own dissolution, because it did not occur within its lifespan.

The profession of patent attorney will not disappear in the next ten to fifteen years. It will be cut back to a fraction of its present size. What falls away is the broad middle — the majority of attorneys who work in the firms today. What remains is a narrow layer of specialists in the difficult niches and a small group of litigators. The doubling of notarisation will collapse into a single notarisation, in which the office communicates directly with the inventor, mediated by the machine that helps to write this essay.

That is the movement. It will take place. What the individual attorneys make of it — whether they specialise in time, whether they move into other legal fields, whether they sell their practices while there is still value in them — is their own affair. But that they will have no choice but to face the movement is the point a profession which takes itself for the notary of the notary cannot see by its own means.