The patent system: some thoughts on stakeholders and users

Lest anyone accuse this Kat of getting into an awful argument and then trying to change the subject, he states at the outset that he writes with both urgency and frequency on more or less all aspects of intellectual property law, so the switch in the course of today from US copyright and the Wikipedia black-out, through European Commission research material on parasitic copying and then on to the patent system is no more than what he'd normally be doing in any old workday.

Two things got this Kat thinking and he has put them together to make a third. The first is the use of the term "stakeholder" -- a word which, in his imagination at least, has changed its meaning over time -- and the clamour of so many different voices to be heard in the great BungleFest which has been the recent debate over the final form of the make-over for the unitary patent system and unified patent litigation system for the European Union.

First, "stakeholder". Once upon a time, two persons might for example have a wager as to which could drink a yard of ale more quickly. Each of the contenders would hand the sum they were prepared to wager to a trusted third person who would hold the amount each staked until, following the outcome of the contest, it was apparent that one or other was the winner. The stakeholder would then return to the winner his original stake, together with the sum staked by the loser. A useful, if not essential, characteristic of the stakeholder was that he was in some sense neutral and trustworthy, so that he would do nothing to prejudice the outcome of the wager and could be relied on to pass the stake to the victor.

Language changes over time, and so do concepts.  Now, when seeking evidence in support of law reform, governments in some enlightened countries invite comments and submissions from "stakeholders", who are characterised not by their neutrality and trustworthiness (though they may possess both), but by their involvement in the field in which the law reform is contemplated and their direct interest in its outcome.  In one sense this is exclusionary.  Patent owners (whether industrial concerns or so-called trolls), their competitors who may be excluded from trade by the existence of a patent, investors who lend money in contemplation of the grant of a patent or on security of it, health agencies and environmental groups can all be said to have a stake in a particular patent, in a sector in which trade is shaped by patents or in the patent system as a whole. In a wider sense, however, "stakeholder" is inclusionary since it is difficult to define a cut-off point which deprives consumers, their dependants and the public at large of an entitlement to express the manner in which a patent, or the system at large, affects them.

Self-interest -- a defining
characteristic of the stakeholder,
or an innocent by-product?

Turning now to the debate over the new-style European Union patent system, this too raises the issue of who has an entitlement to be heard.  Here the vocabulary of stakeholder interest appears ill-fitting. "Stakeholder" is almost a disqualification in a debate where the display of one's credentials, experience and expertise is seen as a concealed plea on behalf of one's own self-interest.  The right to be heard is shaped by rules of engagement that determine the order in which different organs of the European Union process a law reform proposal; which committees and which administrators are involved; which issues have been removed from further consideration via explicit or implicit agreement over a solution or over need to defer it; and so on. At this point, the law reform exercise has become a political issue and the question of who has a say is a political question.

Leaving the question of the "stakeholder", this Kat had the pleasure earlier this week of opening a package that contained a book which invoked in its title a refreshingly direct concept: the user.  Its title, A User's Guide to Patents, is not intended to contribute to any debate. It's a heritage title (old IPers will recall the launch by Butterworths in the early 1980s, of Michael Flint's A User's Guide to Copyright; sister publications dedicated to trade marks and patents followed, somewhat later). This title reminded the Kat of something of utmost importance: the patent system isn't a sequence of legal and/or logical propositions that exist for the sake of mental gymnastics and the amusement of economists, nor is it a multi-player real-time game in which the participants either pay or receive sums of money. What is it, but something which is used on a daily basis by thousands of people.  And it is on the basis of whether its users can make it work properly that the patent system should be assessed, adjusted and radically reformed if necessary.  In doing this, the question we must keep before is not "how do we balance stakeholders' interests?", since that is a question of fine tuning, but "can we get it to work at all?"  If it's not fit for purpose, all the balancing in the world won't make it any better.

A User's Guide to Patents will be reviewed, eventually, on this weblog (this, the third edition, is a chubby book, so this may take a while).  The author, Bird & Bird's Trevor Cook, is a friend of all felines but, more importantly, he is a person who has spent decades of his life actually using the patent system and who, notwithstanding the fact that he has done so, still turns up smiling at conferences and seminars and has something positive to say about how you can get that little bit more out of the patent system if you know how to use it [Merpel speculates that Trevor is the sort of person who knows how to squeeze those last little bits out of the ketchup bottle too and hopes he'll put the same skill to a new book on how to squeeze some extra royalties from the nation's IP law publishers -- but that's another story ...].  The wisdom of Cooks throughout the ages is that the proof of the pudding is in the eating: much the same can be said about the patent system too. Does it work when used according to the accompanying instructions? Is it user-friendly? How does its use fit into a world in which most people have only an indirect connection with it, at best? How can its performance be improved for the benefit of users and non-users alike?  In answering these questions, this Kat hopes this book will be of some ...use!

If you can't wait for the Kat's review, you can read about Trevor's book here.