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Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

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Wednesday, February 01, 2006

A New Type of Patent Is Needed?

Professor Lee A. Hollaar writes in

IEEE Spectrum Online under headline "Patents 2.0 - A new type of patent is needed":

"[...] There are big problems with patents, especially software patents. It takes too long to get patent protection, particularly for fast-moving high-tech industries. Protection often goes beyond what is needed to prevent competitors from usurping new techniques, lasting about two decades and blocking even those who independently invented the technology. And the current limited examination - dictated by application fees - often doesn't give the examiner time to find and consider important "prior art," so that questionable patents are granted.

But scrapping software patents altogether is not the solution. Instead, I propose that a new form of intellectual property be considered that gives reduced benefits in exchange for speedy protection.

[...]

However, because the innovation patent appears simply to trade off a reduced term for a lower standard of patentability, and petty patents often exclude technologies such as software where they could have the greatest benefit, they should not be adopted as a way of addressing software patent problems.

Instead, a new "limited patent" should be developed that grants protection from the moment the technology is first used in commerce. The primary purpose of the limited patent would be to provide immediate protection for technology that - once on the market - could otherwise be copied by a competitor before regular patent protection could be secured. Inventions not actually available in the marketplace would not be protected.

Protection would last for four years, enough time to establish a market and about the time required to process a regular patent application today. That would allow inventors to have immediate protection against knockoffs of a technology even as they try to get broader protection by meeting the more stringent requirements for a conventional patent. It would also encourage further innovation, because new features could get their own four-year protection. [...]"

Despite his rejection of "Petty Patents", apparently Mr. Hollaar's proposal has some features in common with the "Utilitry Model" available since long e.g. in Germany or Austria. It is a kind of a register patent with a requirement of novelty. Some argue that for Utility Models in practice the requirement of an "inventive step" is watered down more than with regard to examined patents. Their term is limited; in Germany it lasts 10 years at maximum.

Due to some histrorical reasons, method claims are not eligible to Utility Model protection in Germany; however, this could be changed if a political majority is formed.

And, of course, protection conferred by a German Utility Model starts with registration, not with first use in commerce.

The essence of the independent invention defense is known to the German Patent law as so-called "Vorbenutzungsrecht", i.e. a German patent has no effect against a person who, at the time of the filing of the application, had already begun to use the invention in Germany, or had made the necessary arrangements for so doing. Such person is entitled to use the invention for the needs of his or her own business in his or her own plant or workshops or the plant or workshops of others. This right can only be inherited or transferred together with the business. If the applicant or his predecessor in title has, before applying for a patent, disclosed the invention to other persons and reserved his rights in the event of a patent being granted, a person learning of the invention as a result of such disclosure cannot invoke measures which he has taken within six months after the disclosure (Sect. 12 para. 1 of German Patents Act).

I am inclined not to plainly buy the alleged benefits of Mr. Hollaar' proposal.

As explained earlier I do not share partialities against patent holders not directly working their patents. In my view there is no sound basis for discriminating patentees giving licenses to third parties (instead of producing in own factories).

And, furthermore, despite the fact that Utility Models are comparatively inexpensive they merely fill a certain niche of our contemporary Intellectual Property business; larger parts of the industry appear to prefer a somewhat more expensive examination of patent applications in order to learn on whether or not their inventions are really valuable (Yes, I know, this can work only if the Patent Offices do their work sufficiently well). Register patents might cause the risk of legal uncertainy for the general public.

Mooting of sector-specific Intellectual Property laws evokes the danger of creating a very fragmented and complex situation where difficult borderine decisions have to be taken on the correct association of an invention to a certain sector of Intellectual Property protection.

I am a friend of reforms making sure that Patent Offices are enabled to do their job well, thereby in a reasonable timespan of examination work preventing grant of patents on inventions not deserving legal monopoly status in view of their lack of novelty or in view of their obviousness.

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Utility Models

[UPDATE 2006-02-02] See also

discussion on Slashdot.

As stated:

"And the current limited examination - dictated by application fees - often doesn't give the examiner time to find and consider important "prior art," so that questionable patents are granted.

But scrapping software patents altogether is not the solution. Instead, I propose that a new form of intellectual property be considered that gives reduced benefits in exchange for speedy protection. "

I don't know what goes on inside of the European Patent office. As somebody working in the IT industry I realy wonder why so many software patents are granted. What is so innovative about the Amazon 1 click button buy patent ? Well from a technical point of view: nothing, zilch, nada, 0. The technology being used was already around for years. They just used different terms. The wurst thing of all is that most software patents are of such bad quality with overbroad claims. At the rate software patents are being granted in Europe and the US. They are becoming nothing more then a block of concrete on the leg of the computer industry. Why does Microsoft have 14 patents on the movement on the cursor of a screen. For skilled person in the art (which I consider myself :-) ). The cursor is so basic, its not new anymore. Yet Microsoft has to many patents on it. Most of these patents where granted in the last 6 years.

If student in school writing a simple C program with printf nad "if ( ) then" and he already violates software patents. How the heck is the small company supposed to see software patents as beneficial ? Last year in total 400.000 patents granted in the US. More law suites. All on very basic claims.
"A method to "

Roderick Klein

# posted by rwklein : 02 February, 2006 01:17

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