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Friday, 22 March 2013

Fordham and quality patents: what do you think?

This Kat is already looking forward to next month's Fordham IP Conference, which takes place on 4 and 5 April at the university's Law School in New York.  He has written before about its exuberant, no-nonsense atmosphere and about how participants have the chance to focus sharply on the relevant issues while disregarding the padding and the intellectual flab that choke so many conferences elsewhere. When you only have, say, ten or fifteen minutes in which to say your piece, and your audience consists of judges, practitioners, scholars and people who know as much about the subject as you do, if not more, you have to make sense -- and make sense fast -- or you waste (i) your own opportunity to say your bit and (ii) everyone else's time.

As far as he knows -- and the best-laid plans of mice and men have been changed at a moment's notice by Fordham impresario and compere Professor Hugh C. Hansen
(right, as usual) -- this Kat is participating in two panels, dealing with EU trade marks and designs -- and is also speaking on the topic of quality patents. It has long been this Kat's contention that, while no-one opposes the notion that patents should be of good quality, discussion of the subject has been hampered by the following considerations:

  • there is no single agreed definition of the concept of "quality patent";
  • the term has different meanings when viewed from the perspective of patent proprietors, administrators of the patent system, litigators and investors;
  • the notion of the quality patent may also vary as between different technologies;
  • there is a three-way relationship between cost, time and effort which must be properly understood before we can decide whether, even if quality patents can be defined and created, we really want them.
Readers' thoughts on this issue are welcomed, since this Kat has yet to write his paper (there's a long plane journey ahead!) and also, more significantly, because like many people who have been around a long time, he finds his own ideas so comfortingly acceptable and persuasive that he can easily overlook the arguments of others.

If you'd like to comment on what you think "quality patents" mean, or ought to mean, in contemporary industry and commerce, do please post your comments below or email this Kat here with the subject line "Quality Patents".

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Fordham on the IPKat: all the Fordham conference sessions are recorded, transcripted and published, which is good news. However, if you can't wait, this Kat hopes to do some live blogging from the event, as he has done in the past, and he also hopes to make his quality patents paper available if and when his thoughts crystallise into words.

5 comments:

Anonymous said...

Quality patents are those that are (a) novel and inventive, and (b) do not claim ridiculous scopes out to the orbit of Neptune, when all that's really wanted is the house just down the road. (b) is often done in the chemical fields particularly by defining things in terms of obscure parameters, which, more often than not, are completely invented and are disguised ways of claiming the prior art.

MaxDrei said...

Jeremy, the EPO Academy ran a two day conference on "Patent Quality" at The Hague a few years ago. Hugh Laddie was one of the speakers. I think the proceedings are accessible on the EPO website.

For me, a "quality" patent system is one in which the Supreme Court court decides obviousness using the EPO's Problem and Solution Approach.

Norman said...

To my mind a quality patent is one which is granted only if the lure of the patent reward was required to bring forth the invention. This was articulated most famously by the USSC in Graham v John Deere Co, 383 US 1 at 11 (1966) “[T]he underlying policy of the patent system [is] that ‘the things which are worth to the public the embarrassment of an exclusive patent’ ... must outweigh the restrictive effect of the limited patent monopoly. The inherent problem was to develop some means of weeding out those inventions which would not be disclosed or devised but for the inducement of a patent.” I think this is an excellent statement of the problem, to which a solution has not yet been found.

Matthew said...

A quality patent – or the quality of a patent is something you are more likely to know when you don't have it or don't see it; and it is less easy to articulate when you do. This quality calculation depends on what you or anybody else wants the patent for – the quality bit may mean it is just a bit better at doing that than a not-so-quality patent. Patents have functions. The better the quality patent, perhaps the better at discharging such functions.
Quality may thus be determined or judged by performance or effectiveness. But these are nebulous and often ex post barometers.
A better way in may be to ask whose patent are we talking about? The blog post addressed this. Are we are talking with a 'lawyer', 'economist' or what is 'best' for 'general societal welfare' hat on? Do we have several hats on at the same time? Somewhere in the patent mix(-up) we might even dare to don a political hat....ouch. Can't we just negatively agree there is hardly likely to be an agreeable quality patent? It is contextual and thus a never-ending story. Except we might positively agree amid this meaningful endeavour that the implication is of working out what is a high quality. Experience suggests it is easier to work out what that is not. “We know what’s it not!” comes the reply.
My personal view is quality must equate with legitimacy of the system – across users and uses, across a substantive and procedural core, and accounting for society’s flavours (e.g. comparing US, ‘Europe’, China and so on) which fluctuate and are influenced by interest groups and political agendas. It is a compromise.
Perhaps a focus on headline patents, i.e. the ones litigated and so on, and judging backwards from there, is hardly helping. Inevitably, it is easy to pick holes and point to a low/poor quality patent and thus low/poor patent system. But what are we comparing this to? We have nothing to compare it to – there is no existing non-patent system of any comparable value. That counter-factual limitation is regrettable.
A better approach may be to assess the impact of patents some way down the line, even after expiry to see what they added. Some numbers can be gathered and compared with other numbers from other patents, and with limitations accounted for, pre-patent times. Sectorial and geographical trends may be revealed. We might just find that the argument (low/poor quality) patents hinder innovation is a misguided and misleading point of departure. We may build up a stronger belief that there is a limit to what “quality” we can expect from an isolated thing like a patent – and suggest that the market accepts what is the right patent at any given moment (quality is secondary); and rejects (with the help of the law) what is the wrong patent.
Who said idealism was dead?

Anonymous said...

A quality patent is a patent that underlines the value of having a patent system, not undermine.

Any non-quality patent should trigger the discussion for abolishment of patents, break away from internatitonal treaties or just ignoring them.

The Dutch abolished patent law in 1869, had great fun raising Unilever and Philips afterwards and signed the Paris Convention while stalling reinstatement of a patent law till 1910.

Quality patents should do the opposite. Underlining, not undermining, are patents which contribute to the state of the art and leave no room for wiggling scope during litigation.

What a wonderful world that would be :)





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