Is it time to end patent examinations? 15 Mar 09
Bo Heiden is the deputy director of the Centre for Intellectual Property, a co-venture between Gothenburg University and Chalmers University of Technology and School of Business, Economics and Law. It is one of those very rare university ventures that looks at intellectual property from an inter-disciplinary perspective in which legal and business issues have equal weighting. One of Bo's jobs is to ask consensus-shaking questions about the future of IP. This makes any conversation with him both thought-provoking and entertaining. And I have been having a few with him over recent weeks. This is because CIP is one of our partners in putting on the IP Business Congress, while we are involved in its bi-annual Forum, the next one of which is due to take place in September.
The other day, we were talking about the current backlog in patent offices around the world. Given the number of pending applications and the huge numbers of new ones that are submitted each year (despite current the current recession induced slowdown), how on earth do you deal with it and end the huge levels of uncertainty that the backlog causes? Well, said Bo, why not just get rid of examinations? Instead of being places in which substantive inspection of applications take place, why not make patent offices rubber-stamping authorities which merely certify that all the legalities associated with an application have been complied with? Intrigued, I asked him to tell me a bit more. So he has:
In the knowledge economy patents need to take on the role of building rather than blocking. To create such a world firms will need to focus more on developing their patents focused on business goals not bonus schemes, as well as spending a great deal of time understanding the patents of others. In this world patent examination (note: examination not patents as such) becomes less important, as patents become more of a means to objectify knowledge for transfer as opposed to a means of blocking one another. Since only high quality patents are commercialised - studies suggest only 10% - and these 10% are scrutinised in depth, why is there a need to examine patents at all? Most examinations are irrelevant (the 90%) and the others are redundant. Just stamp all patents as valid and fine the hell out of those actors that later try to use those that were obviously not valid when submitted. Let the firms do more of the work as they need to do this anyway in the knowledge economy.
However, there does seem to be a growing consensus among patent offices themselves that applicants and their representatives should do a lot more vetting work than they do now before submitting anything. Added to this is the fact that not only do most granted patents have no real value, but that in the Trilateral authorities around 50% of applications (more in the US these days) end up being rejected. So, if you think about it, from the moment it is submitted to a major patent office, an application stands only a very small chance of being any use to anyone. On that basis, isn't the whole patent prosecution process as it now constituted a waste of everyone's time and money, especially as, like Bo says, there is a discernible shift towards a more collaborative use of intellectual property?
It is important to emphasise that what Bo is suggesting is not an end to the patent system or a curtailment of the legal rights that accompany a patent, but instead a new way of understanding what patent protection means..Rather than rely on under-resourced and over-stretched government offices to make decisions about what should be protected, this would be about rights owners themselves making much more detailed assessments based on what they know about the inventiveness of their own technologies and those of their competitors. The courts would still be there as a final arbiter, but if there were severe penalties in place for those bringing suits based on non-inventive patents, people would remain wary of litigating unless they felt they had a very strong case.
As I said, I am not completely convinced and I am sure that people will find big holes in what Bo is saying, but I can't help thinking he has hit upon at least the beginnings of a solution. For example, there does seem to be some dovetailing between his ideas and the interoperability patent suggestion first put forward by David Kappos of IBM in an interview with IAM back in 2007. But whatever you think of these, one things should be pretty clear to any observer of the global patent system - we can't carry on as we are for very much longer.
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