tag:blogger.com,1999:blog-5574479.post1729783516859553827..comments2024-03-29T13:59:42.629+00:00Comments on The IPKat: Is Disclosure a Justification for Maintaining the Patent System?Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5574479.post-76048857961169075302013-01-14T09:09:31.311+00:002013-01-14T09:09:31.311+00:00The disclosure only seems to educate the examinors...<i>The disclosure only seems to educate the examinors</i> [sic] <i>as that is the only professional group that ever references those doocuments</i> [sic].<br /><br />My first exposure to patent documents was as a student, performing a technology background search for a research lab. So, I'm afraid that you are very wrong, sir, and not just in your spelling.<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-49569330793204257912013-01-14T08:34:33.903+00:002013-01-14T08:34:33.903+00:00The disclosure only seems to educate the examinors...The disclosure only seems to educate the examinors as that is the only professional group that ever references those doocuments.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-51180423100246730052013-01-14T08:28:16.399+00:002013-01-14T08:28:16.399+00:00In attacking a purported "sole genius" t...In attacking a purported "sole genius" theory of patents, Mr. Lemley is taking on a convenient, carefully-stuffed straw man. I don't think many patent professionals, never mind other people involved in the invention process, adhere to the quaint idea that invention is the business of lone geniuses.<br />But this is just the reason why the disclosure role of patent publications is so important. The whole point of the patent system is to provide an incentive to share the knowledge of inventions, if not the inventions themselves, in order to allow their aggregation. While some critics of the patent system (including some notorious and egregious infringers) are unashamedly self-serving, they also do us patent professionals a favour by reminding us of this original purpose of the patent system. There is no question that many patent publications these days range from the vapid, through the impenetrable, to the utterly nonsensical. I've read and drafted too many of them myself to claim otherwise. And it more than irks me when I hear that some corporations actively ban their technical staff from perusing patent documents, out of fear of triple damages from "wilful infringement" in the US.<br />On the face of the present challenge from anti-patent activists, we should have a serious reconsideration of how to improve the quality and facilitate the understanding of the technical disclosure of patents. It's absurd, for instance, that in our age of multimedia and desktop publishing, the actual form of patents, with reams of uninterrupted text and separate drawing sheets, is still dictated by the limitations of early XIX century printing technology. It's self-defeating that, in practice, ensuring the actual disclosure of the invention takes a backseat to formulaic considerations of inventiveness during examination. And I better won't say what I think of some US case law and how it has been interpreted by our cousins across the pond to all but ban vocabulary such as "invention" from the content of patent applications...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-43599513802594876522013-01-13T12:56:28.486+00:002013-01-13T12:56:28.486+00:00As far as the UK is concerned, there has most defi...As far as the UK is concerned, there has most definitely been a progressive shift in the way patents are treated since the Patent Office was reformed in Victorian times under Bennett Woodcroft. <br /><br />When examination was first introduced, applicants were expected to do their own searching for prior art. The Patent Examiner's main duties were to ascertain that the invention had been described in sufficient detail to ensure that it could be carried out by the skilled person, to write an abridgement of the entire technical disclosure so that the technical information could be retrieved, and as the "Deep indexing" classification scheme progressively evolved, apply appropriate indexing terms to facilitate extraction of this information by searchers. This involved the examiner making a thorough reading of the entire description to ensure that all relevant technical information was extracted, and abstracts could be as long or as short as was necessary. <br /><br />Procedure under the 1977 patent Act brought significant changes. The detailed examiner-written abridgements were replaced by the brief abstracts provided by the applicant, and it is evident from the Manual of Patent Practice that examiners are now only expected to read as much of the description as is necessary for them to understand the claims sufficiently to carry out a search for novelty and inventive step. They are no longer expected to read the entire description or to ensure that the technical disclosure is enabling. <br /><br />Thus the emphasis of examination as set out in the manual is now focussed on the scope of protection and not on the obligation to provide a technical teaching of how the invention is to be performed. As it is now some years since i last prosecuted a UK Patent application, I don't know if UK examiners do raise objections of lack of enabling disclosure in practice. Certainly I have had to deal with this sort of objection from the EPO, admittedly usually with some justification, and often arising from issues with mistranslations from non-English priority applications that have sometimes been fixable by referring back to the priority document. <br />Ronnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21001080101534916092013-01-13T12:20:05.733+00:002013-01-13T12:20:05.733+00:00In biotech patent applications and patents act as ...In biotech patent applications and patents act as a mechanism for building value whilst a product is being developed, which can take 10 to 15 years from a first patent filing. Somehow the system works and gives companies something tangible which can be used to attract investment.<br /><br />Also given how many novelty citations we see in search reports a lot of the disclosure of many patent applications is not adding substantially to the relevant field.Sulemanhttp://www.hollyip.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90792421546765467422013-01-12T08:05:52.583+00:002013-01-12T08:05:52.583+00:00The legal fees are the costly inefficient part, no...The legal fees are the costly inefficient part, not the patents themselves. <br /><br />Patents themselves benefit competition by making it worthwhile working to invent new and better ways of doing things.<br /><br />Why would a pharmaceutical company spend millions developing a new drug, if the moment it was released it could be legally manufactured and sold by anyone?<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55468474135801168822013-01-11T21:11:13.533+00:002013-01-11T21:11:13.533+00:00I strongly disagree with Mark Lemley. As a biotech...I strongly disagree with Mark Lemley. As a biotech inventor, I've been on both ends of this. <br /><br />As Lemley points out, I have rarely turned to a patent for information, but I have followed on from scientific articles that simply wouldn't exist without a patent in place. <br /><br />And on the other side, I have published work that without a patent would still be locked away in some company's archives. <br /><br />Does having to disclose your invention in a patent have a positive impact on future science... in my case and the case of many people around me yes!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-59324081561759134162013-01-11T17:16:07.066+00:002013-01-11T17:16:07.066+00:00To what extent is disclosure a justification for t...To what extent is disclosure a justification for the patent system? Strange question but my view is that it provides no justification. This may have been the case historically for a patent system but it has no relevance today. Disclosure is relevant for determining the scope of protection and ensuring that the enablement requirement is met. OK, the US has the best mode requirement as well but other than that? Patents are there to reward technological advances, encouraging industry to invest in development rather than copying others.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9473750747558441502013-01-11T16:17:26.370+00:002013-01-11T16:17:26.370+00:00The grand patent bargain may initially have been t...The grand patent bargain may initially have been the drive for a government to draft a patent law, thereby issuing a monopoly right in exchange for patent publication. <br />Whether or not this is true is of no interest anymore, now the system has been vested and is successful in the sense that it generates net income for the Treasury. As long as the income for a country is higher than the expenses the legislator will be happy. And as long as a monopoly can be obtained for a reasonable price the applicants are happy. <br /><br />Why question a system that makes everybody happy?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-92072984156081671812013-01-11T15:43:09.076+00:002013-01-11T15:43:09.076+00:00In my limited experience, that usually works the o...In my limited experience, that usually works the other way around, particularly at universities. Publishing a scientific paper is (understandably) the main priority and will happen regardless of any IP considerations. Filing a patent application first tends to be a secondary consideration. It is rather more common to rush out a priority application to obtain some sort of protection for an interesting scientific result, than to delay publishing a scientific paper until that single interesting result can be turned into enough evidence to support a solid patent application.<br /><br />This is just a generality of course. I'm sure many readers of this blog will know researchers that are more than capable of juggling commercial savvy and the demands of academia but I would venture to suggest they are the exception rather than the rule.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-43204754596484728472013-01-11T14:10:19.413+00:002013-01-11T14:10:19.413+00:00The premisse that inventors do not learn science f...The premisse that inventors do not learn science from patent publications sounds reasonable. They learn it probably from scientific papers. However, what Lemley appears to overlook is that those scientific papers may never be published if the technology cannot be patented. Those papers are in practice usually only published after a patent application has been filed.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-5391591312671923132013-01-11T14:02:27.704+00:002013-01-11T14:02:27.704+00:00Neil, I think you'll be waiting for this:
&qu...Neil, I think you'll be waiting for this:<br /><br />"In particular, this Kat still awaits empirical results that show that the advantages of disclosure are outweighed by the costs to competition and economic efficiency."<br /><br />until, as they say, hell freezes over. Too many vested interests at work, some seeking to maintain the system, other seeking to end it, and all interpreting the available data to justify their positions.<br /><br />IMHO, patents are primarily legal documents, designed to define legally-enforceable monopolies to keep people out, not to inform them. Part of the deal is that you have to define the boundaries of that monopoly. As disseminators of scientific knowledge, patents are generally pretty hopeless (and in most cases, not even pretty). <br /><br />I suspect that, as stimulators of innovation, patents are, like Churchill's famous statement on parliamentary dempocracy, the worst form ever devised by man, except for all those other forms that man from time to time devises.Anonymousnoreply@blogger.com