Patent quality issues in Britain
Defending patents against infringement would be swifter and less
costly if challenges on validity were less frequent, but this would depend on the examination process being based on quality and not the quantity targets set by the Department of Trade and Industry. Perhaps it is not surprising that the Patent Office does not accept responsibility for the quality of its work -because it regularly misses obvious "prior art" when examining patent applications.
For example, M Wright & Sons, a textile manufacturer, obtained a UK patent. It then wished to patent the product in the US, but the authorities there refused by citing another UK patent as prior art. Michael Wright, the company's chairman, says: "We had no idea that the UK patent existed as our patent expert had not found this, nor had the UK Patent Office noticed it. Our faith
in patents was pretty well destroyed by this." [Note that this particular example goes counter to assertions of the NAS that patents are more likely to be granted in the US than in Europe.]
Patricia Hewitt, Trade and Industry Secretary, whose department
controls the Patent Office, said in a speech to the Federation of Small Businesses:
"I know that the prosperity of the British people depends upon you and the hard work of millions of people like you. Twelve million people depend upon smaller businesses for their job. Half our national wealth. And a staggering nine out of
ten new business ideas."
But one EU-wide study in 2000 found that more than two thirds of
SMEs had experienced patent infringement. Billions of pounds are lost by British business through patent infringement every year.
So a recent Patents Bill theoretically set out to "provide a more supportive framework, particularly for small businesses, to enforce patent rights and
ensure that UK patent law continues to underpin and promote
innovation". Yet the
Bill contained nothing useful to counter the legal inequalities or to make patents any more secure. Constructive alternatives were offered during consultation, and many enforcement amendments were tabled at various stages, but
none was taken up. Why was the Government's rhetoric about supporting British innovation not matched by effective changes to the law when it had the chance?
All that most innovators want is acknowledgement of their
inventions and fair payment for use of their patented ideas. So, until Britain radically reforms its patent system, SMEs should consider taking out a patent elsewhere. There are about 600 patent infringement cases each year in the German courts, compared with 20 or so here, and Germany has an enforcement process that is faster, cheaper and more effective than ours. Vorsprung durch technik indeed.