The Danish Board of Technology: "Recommendations for the Patent System of the Future".
A report "Recommendations for the Patent System of the Future" has been published by The Danish Board of Technology. The report was prepared by a working group with the objective of giving the patent system a thorough 'going-over', discussing consequences and implications, and providing ideas and recommendations for the solution of problems identified.
From the Executive Summary:
"Since its inception in the 19th century, the patent system has become a fundamental institution in society. The patent system is widely recognised as pivotal for the development of new knowledge in both private business and public research and of great importance to growth and welfare. Throughout history, it has always been an expression of difficult political compromise between inventors and users of new knowledge or between social short-term interests (low prices to present users) and long-term interests (the development of new technology). The patent system is a political control tool and, as such, merits greater political attention. To meet this objective, there must be a balance between social advantages and disadvantages in the patent system. The expenses incurred by society in granting an exclusive right must be justified by the benefits reaped by society of enhanced technological advances.
Patent rights have continued to be strengthened and developed over the years. More and more products and processes can be patented, more and more people can take out patents, duration has been extended, administrative burdens reduced, and the protection and enforcement of patents strengthened. While advances in technology move forward at a rapid pace, modifications of patent legislation progress much more slowly. This may translate into a possible mismatch between the reward offered by the patent system and the social benefits.
Our knowledge of the effects of the patent system is far from complete. There has been a striking lack of economic analyses, and it is indeed fairly difficult to evaluate if the patent system benefits society. Some analyses show that stronger patent rules may advance economic performance, competition and research, while others have reached the opposite conclusion. For some industries, the patent system is key to ensure advances in technology. For others, it is doubtful if the system contributes anything to those advances; it may even have negative effects on research and growth. Evaluation of the patent system is being complicated by the fact that evaluation is not possible without the inclusion of additional political rules and frameworks, such as competition legislation, technology policies, information and research support. There are no simple solutions.
The general recommendation by this working group is therefore that rigorous analysis is necessary to determine if a more differentiated and flexible patent system can be designed, containing different durations and types of protection depending on development time, costs, market conditions and product life. The working group specifically recommends the support of the development of a fee-based patent system, which does not allow the patent holder to prohibit the exploitation of the patent, to supplement the present exclusive-right based system which allows bans to be imposed. This recommendation will facilitate access to licenses, lead to more efficient exploitation of the knowledge patented, strengthen enforcement and encourage small and medium-sized enterprises in particular to take out patents. Similarly, it is recommended to propagate the utility model system (also known as “petty patents”) which may function as an alternative to the patent system or ensure increased flexibility of examination during the patenting process itself. In genetics it should be considered if the unrestricted product patents may be replaced by use and/or method-of-use patents or by limited product patents where only the core function of the invention is patentable. Software patents should be required not to block the interoperability of other software and it should be ensured that all necessary knowledge to reproduce the invention is specified in the patent. It is important to ensure that licenses for patents, developed by public research institutions, are designed so public interests are protected and access for public researchers ensured. There is a need for a clearer and more stringent definition of research exemption, to avoid future problems.
It is recommended that university patenting activities are explicitly targeted towards ensuring the application of publicly funded research results, so that patents are taken out only if they encourage the diffusion of those results. The consideration for income to the universities should be downplayed.
In the administrative field, the working group recommends that initiatives are taken to enhance the quality of patent management through increased resources, common guidelines for examination, cross-sectoral investigations of patent practices at various administrative offices and authorities, and the development of international databases and/or procedures for mutual recognition of examination results. It is very important in a future harmonisation of the patent system that the present broad Danish right of objection is maintained so everybody can object to new patents, and that the option to object and demand administrative re-examination is facilitated.
It is also proposed to abolish the restrictions of the patent system motivated in ethical or moral considerations. The patent authorities are not suited for undertaking this type of evaluation. The patenting of unethical or immoral inventions will give greater insight into the development of technology, and any ethical and moral aspects should instead be managed by other authorities in connection with decisions to allow experiments, application and marketing. The working group supports a common EC patent in only one or two languages and the efforts towards a global patent system centralising both issuance and enforcement.
In view of the many unanswered questions to the effects of the patent system, one key recommendation is to develop a more robust basis for decisions before the adoption of any modifications, including analyses to elucidate the effect on both the competitive situation and broader social interests. There is a marked need for more knowledge and more studies of the implications of the patent system. There is also a need for enhanced methods to involve other actors in the decision processes in order to examine and discuss the patent system from the perspective of a wider group of stakeholders. At the same time, a kind of precautionary principle in the patent system should be established, so future modifications will take place only if they can be ascertained to be of benefit to advances in technology.
Those are just some of the recommendations contained in the report – recommendations that are targeted not only at the patent system but also at the rules and regulations that complement and balance it.
It is important that considerations on the patent system of the future should be implemented internationally, particularly within a European framework, as patent legislation in recent decades has been harmonised through a long line of agreements and treaties. Hence, the aim and recommendations of the report are meant to cover not only Denmark but, even more so, European and global levels as well. Here Denmark’s efforts and influence are vital.
The conclusion by the working group is that it is no longer tenable just to keep filling up the old system without producing a more solid foundation for decisions. In particular, developments in biotechnology and information technology have put the system under pressure; however, those developments have also resulted in the discussion of issues of a more fundamental nature for the entire patent system. Our recommendation is to slow down in an attempt to control this evolution, to ensure the appropriate development and exchange of knowledge needed to support future growth and welfare."
15 June 2005, 2pm – 5pm Copenhagen Business School Solbjerg Plads 3, 2000 Frederiksberg, Denmark.
At the seminar, the working group will present its recommendations for the future development of the patent system. The following experts will present their comments on the recommendations:
Dietmar Harhoff, Ludwig-Maximilians-Universität München (Institut für Innovationsforschung, Technologiemanagement und Entrepreneurship)
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
"Recommendations for the Patent System of the Future" has been published by The Danish Board of Technology. The report was prepared by a working group with the objective of giving the patent system a thorough 'going-over', discussing consequences and implications, and providing ideas and recommendations for the solution of problems identified. 
