Wednesday, January 27, 2016

Is it easier to get a patent in the US, or in Europe, or in China?

In a piece titled New patent subject-matter eligibility test hurts US competitiveness, Robert L. Stoll suggests that the US patent system may be more patent - grant unfriendly than the patent systems of Europe or even China.

But due to a series of poorly considered and frequently misapplied Supreme Court decisions, applicants in key technologies such as biotech and software are now facing more stringent criteria for obtaining and keeping patent protection in the U.S. than they are in China, the European Union and other jurisdictions, which reduces America's global competitiveness.


The Mayo test stands in contrast to the approach in Europe, where claims are analyzed to assure they have a technical character. If they do, they are evaluated as to novelty and inventive step. If the claim is a mixture of technical and nontechnical features and the inventive step is not in a technical field, the claim is not patentable subject matter.

Even in China, patents are granted as long as the claims contain a technical feature distinctive from the prior art. A patent claim in China will overcome the "technical solution" hurdle if it uses a "technical means." This leads to broader patent subject-matter eligibility in China when compared to the U.S.


From the perspective of those creating meaningful innovation like the examples outlined above, the European and the Chinese approaches to patentable subject matter are preferable to the current U.S. doctrine. Continued invalidation of large swaths of discovery and innovation domestically will result in a shift of jobs and economic growth to areas where innovators can take advantage of broader patent protection.

In the abstract for the paper Comment on "PATENT GRANT RATES AT THE UNITED STATES PATENT
AND TRADEMARK OFFICE" [ 4 CHI.-KENT J. INTELL. PROP. 186 ], LBE wrote in the year 2005:

In recent patent reform proposals made by the Federal Trade Commission [FTC] and the
National Academy of Sciences [NAS], there has been discussion that the United States
Patent and Trademark Office [USPTO] might have a high grant rate of patents compared
to rates of other industrialized countries, including Japan and European countries.
discussion began with papers of Quillen and Webster that suggested that the grant rate
might be as high as 97% and more reasonably is at least 85%. Clarke suggested that the
issue rate is closer to 75%. While Quillen and Webster based grant rate on applications "allowed,"
Clarke based his studies on applications "issued." In this paper, we use data
from the USPTO to show that the difference between "allowed" and "issued" applications
is not the reason for the divergence in grant rates. Instead, we suggest that Quillen and
Webster's elevated grant rates arise from a flawed numerical approach.

and from footnote 6 of the 2005 paper:

According to the FTC Report, one witness calculated the USPTO's grant rate
at 98% in 2000, compared with 67% in Europe and 64% in Japan.

**As to China, Lexology recently noted:

China handled more patent applications for inventions than any other country for the fifth year running in 2015. The country had over 1.1 million patent applications last year, up 18.7 percent year on year. About 359,000 invention patents were authorized, 263,000 of which were granted to domestic applicants, 100,000 more than in 2014.


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