Thursday, March 26, 2009

Time to end patent examinations?

The IAM blog had a post: Is it time to end patent examinations? which included text from Bowman Heiden:

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.

Later comments to the post included one from Bowman Heiden:

I don't really believe that patents will ever be automatically issued, nor do I really care, but issuing patents automatically is not any more ludicrous than filing patents without any thought of their business use or launching R&D and product development without a thorough understanding of the patent landscape. It was just a thought experiment to get people to focus on the responsibility of business and the significant effect that can have on the patent system outside of examing the patent system as a closed administrative system.

As a side note I'm not claiming that automatic issuance is a new idea and I am familiar with Lemley, who is a highly cited scholar. My argument is about business practice and the growing irrelevance or redundance of the patent institution if it is not better plugged into the strategic technology and business development of firms in the 21st century. This is the real challenge for us IP professionals - to be relevant to business not the PTO.

IPBiz notes that in the business world, there are "our patents" and "their patents." Of "their patents," an article in Harvard Business Review summed up the situation: "plagiarize with pride." Previously, one had the strategy, take it and make it your own. That's assuming the patents are read at all. The IT folks tell their engineers not to read the patents of others. Of "our patents," there will be expansion of claim scope and blocking patents. These uses by the business world of the patent system do not make the patent system either irrelevant or redundant, but they do create controversy.

None of this business use is directed to what the patent system is supposed to be about. The patent system is to foster disclosure of information, into the public domain for all to know, by giving protection to the inventor (information disclosure) against theft. Whether or not innovation arises is up to the free market system.


Of the remarks by Vic Kley, the PURPOSE of the US patent system is to foster public disclosure of useful information (inventions) by offering protection to the discloser from theft for a limited period of time. With the discloser-inventor protected, the free market system determines what inventions will lead to innovations, which actually change (and advance) the way we live. The patent system is directed to inventions, not to innovations.

Of Heiden, the issues with the patent system are NOT ones of irrelevance or redundance. Patent reform is not being sought because the system is irrelevant, but because some people think it is causing problems, largely in disputes over "how much" money should change hands.


Blogger Quick Zone said...

Wow, you have a old blog. Keep update. I'll be back. Thanls

4:25 AM  

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