The IPKat is all agog with the breaking news that the UK and US governments have agreed today to develop an action plan for reducing patent processing backlogs in each country's patent office.Right: it's time to party, as Patent Kats in the UK, USA and Japan prepare to solve their problems by themselves.
According to the UK's own Intellectual Property Office,
"Patent backlogs hinder the deployment of innovation and have clear adverse effects on the global economy. According to a study by London Economics ... [which you can read, in full, all 188 glorious pages of it, here], the first study that attempts to quantify the economic impact of patent backlogs, the cost to the global economy of the delay in processing patent applications may be as much as £7.65 billion each year.There was a bit in the IPO's press release which suggested that the time it takes to process patents necessarily delays innovation. The IPKat thought that this was silly and he omitted it, but the Chartered Institute of Patent Attorneys (CIPA), in its own "let's get our response in first" press release, said it disagreed with that proposition.
Today, David Lammy, UK Minister of State for Higher Education and Intellectual Property and well-known blogger David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), committed both the IPO and the USPTO to develop a plan to optimise reuse of work on patent applications that are filed jointly at the USPTO and the IPO. To this end, the offices will identify all areas of reutilization potential by the end of this calendar year, and will pursue measures designed to facilitate maximum reuse by building confidence in the work done by each office.
David Lammy said: [basically this is a good thing and I'm really pleased we can all be reusing other people's work]
David Kappos said: [I agree -- and isn't it nice to find our own solution instead of having one shoved at us from outsiders?]
Today’s agreement commits the USPTO and UK IPO to a follow on study into the effect of the backlog on competitors [this must refer to competitors of patent applicants, not competing patent offices] and to an ambitious work-sharing collaboration, with the goal of reutilizing each other’s work to the maximum extent possible.
Left: watching pensively through the window, the EPO Kat wonders if he'll ever be invited to join the party.
To this end, the offices will look to establish an office-, as opposed to applicant-, driven system for optimizing availability and reuse of work results on commonly-filed applications ...."
Now here's even more breaking news! As the IPKat's paw presses the 'post' button on this article, he just has time to celebrate the announcement, also from the IPO, that the current pilot Patent Prosecution Highway (PPH) scheme between these the UK and Japan will be made permanent, as David Lammy and Deputy Commissioner Minami (Japan Patent Office) chime in unison.
Now for the special treat. The launch event of London Economics' Patent Backlogs and Mutual Recognition: An Economic Study is to be streamed live from Central Hall, Westminster, starting at 9.00 Greenwich Mean Time. Just click here and the rest is your chance to be a witness to living history.
The IPKat is thrilled at this level of cooperation which, he feels, can only lead to good things. Merpel's not quite so confident, since it seems to her that the highly sophisticated but idiosyncratic nature of US patent law and USPTO procedures may render much UK work too different to reuse with confidence (and vice versa).
Let's celebrate! Two breaking newses and one special treat
Reviewed by Jeremy
on
Wednesday, March 10, 2010
Rating:
Reviewed by Jeremy
on
Wednesday, March 10, 2010
Rating:
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It might clear the backlog but will it improve the patents? On the back of rubbish searches and easily persuaded Examiners at the UK IPO I've seen so much junk granted; unenforcable patents that would be laughed out of court if they weren't laughed off my desk first. On the US the converse is true - overzealous searches that are regularly updated to produce a continuous salvo of torpedoes, and Examiners that apparently would be adept at reading patent applications filed in braille. I don't see how the two approcahes be reconciled to reduce the backlog but I would be happy enough if the US searched and the UK Examined.
ReplyDeleteI thought I'd have a quick look at the London Economics report, but after a mind-numbing 30 seconds, taking in the sheer brilliance and insight of statements such as "Growing patent backlogs increase examiner workload and lead to delays in patent examination and issuance, resulting in longer pendency times" (page xii), I decided my brain simply wasn't up to it.
ReplyDeleteAnyway, my understanding is that, far from facing a backlog, the UK IPO is facing a future of ever-dwindling application numbers in light of the mighty EPO. Perhaps this is an attempt to drum up some more work from across the pond.
"Interesting" that the report does not appear to consider the effect of staff shortages on the backlog. One gem is found in the following:
ReplyDeleteA9.2.6 Number of patent examiners
The UKIPO has recruited heavily in recent years, with the number of examiners increasing from 223 in 2004 to 281 in 2008. This followed a decline in the number of examination staff between 2002 and 2004. As of March 2009, the UKIPO employs 244 full-time equivalent examiners.
Contrast this with the following extract from para 19 of the steering board minutes from Oct 2009 http://www.ipo.gov.uk/steer-minutes-20091020.pdf
19. .... Given the release of 15 Patent Examiners under the recent VER/VES and another natural loss, Mr Dennehey did not believe that there was any immediate concern over the relatively minor declines observed. The current situation was described as manageable, especially given the increasing efficiency and productivity of the most recently recruited Examiners.
Fig 66 of the report shows just how much the examination backlog has risen since 2005, and there was a huge examination backlog in 2008 which even 281 examiners could not keep up with. If you subtract the 16 examiners who were released under VES/VER [I think this was after March 2009] from the March 2009 figure, the current examining staff headcount is 244 - 16 = 228, only five more than in 2005. Even if the figure of 244 includes the 16, it would be surprising if 244 could cope in 2010 with something that 281 could not in 2008. Hardly surprising then that there is a growing backlog.
The present reality is reflected in a letter recently received a from the UKIPO which indicated that, due to the 4 month target for searches, and lack of staff, they do not expect to be able to issue any first examination reports at all in the near future. R 30(2)(b) will apply, giving the applicant only 12 months to deal with the objections.
The Patent Office may well consider this to be a "manageable" situation: others may have a different view.
Backlogs, in the IP world as in the rest of the judicial world, are not only caused by lack of capacity in patent offices, but also by the long delays that are allowed between actions. If an applicant has the right to wait six months, or more, before replying to the examiner's objections, and if he systematically uses all possible tactics to delay the final action (because he has obviously an interest in doing so, for instance because he wants to keep competitors in the dark as long as possible, or because he doesn't have the money for translating the patent once it is granted in Europe, etc.), then necessarily a backlog appears. If applicants (and examiners) were forced to react within, let's say, one month, to each other's communication, the backlog would be much smaller - maybe there wouldn't be any ! But many applicants would not be happy...
ReplyDeleteAll work-sharing or mutual recognition arrangements won't overcome this. Work sharing cannot make the patent process work faster than the least slow patent office. And I'm not even talking about the respective levels of quality of the different patent offices, or their different standards for e.g. non-obviousness.
It looks like I'm not the only one to be skeptical, if I may copy-paste a quote from the IP-watch blog (http://www.ip-watch.org/weblog/2010/03/10/leading-ip-offices-target-patent-backlog-economy-differ-on-harmonisation/):
"Alison Brimelow, the outgoing president of the European Patent Office, was more skeptical.
“Substantive harmonisation is a horse that is being flogged even though it is thrice dead,” she said. While adding she would watch with “hope and fascination” from her upcoming retirement, Brimelow predicted the only problem likely to be solved by such efforts is the “economic crisis in the airline industry as we all fly in and out of Geneva hoping to solve the problem.”
On work-sharing, she said “I’d like to know how that 25 percent figure can actually be achieved.” "
It doesn't necessarily follow that "competitors" does not refer to other patent offices: The Oct 2009 Steering Board minutes include the following item:
ReplyDelete40. The inclusion of the EPO as the top risk when considering risk appetite was noted by Mr Duddy as being a difficult item to consider, given the level of control that the organisation could actually exercise over the EPO. Mr Dennehey agreed, and stated that work in considering the risks of the EPO on the organisation was underway. These mitigating actions were described as being ones of influence rather than direct action.
The minutes of earlier meetings also show that the original intention was to "release" 20 [older and therefore more expensive] examiners under the voluntary early retirement arrangements [VER] in order to balance the books: because the costs of VER were lower than expected, they were able to meet their financial target by only releasing 15. They also refer to the recognised need to recruit more examiners in the near future.