Patents: dead, broken -- or just not working perfectly?

The World Intellectual Property Organization (WIPO) is celebrating the good news that, despite difficult economic conditions, Patent Cooperation Treaty international filings set a new record in 2011 with 181,900 applications – that's 10.7% up on 2010 and the fastest rate of growth since 2005. Top filing countries China, Japan and the US accounted for 82% of the total growth. Chinese telecommunications company ZTE Corporation was the biggest filer. There are loads of statistics on view, and names of companies and countries too, for those who (like this Kat) enjoy reading them.

The past few years have been a period in which we have increasingly been forced to listen to the same mantra about the patent system being broken, if not actually dead or dying. Yet thanks to the patent system we're enjoying an ever-growing list of new products, services, processes -- and information about the world we live in, via increasingly searchable and accessible published documents for which mechanical translation facilities are reaching new standards of acceptability. This is not to say that the patent system can't be improved: of course it can be. But isn't it strange, says the IPKat, that, the more the broken the patent system is proclaimed to be, the more people seem to be intent on using it? Does that tell us more about the system itself -- or about those who say it's broken?
Patents: dead, broken -- or just not working perfectly? Patents: dead, broken -- or just not working perfectly? Reviewed by Jeremy on Wednesday, March 07, 2012 Rating: 5


  1. One can make the argument that more people are using it precisely because it is broken: if you don't get your own patents to protect yourself from being trolled then you don't have any 'weapons' to fire back with.

  2. I agree with anonymous. If a system is broken, increased activity would suggest it is being gamed.

    I would not have expected a Kat to use "Post hoc ergo propter hoc"

  3. With respect, it’s pushing it a bit to suggest that ‘thanks to the patent system we're enjoying an ever-growing list of new products, services, processes’. It’s actually thanks to the effort and risk of innovators, many of whom might feel little gratitude to the patent system.

    And those ‘forced to listen to the same mantra about the patent system being broken’ might be well advised to take that mantra seriously rather than try to block out the noise. When businesses get negative feedback from customers about their products or services, the smart ones make the improvements their customers want. Patent system, please note.

  4. I largely agree too: by the Kat's logic the Cold War worked perfectly because despite each side diverting colossal resources into arming themselves with bigger and more devastating weapons, many people's lives actually improved.

    But what most would say is that lives were improved DESPITE the Cold War.

  5. In my experience patents are one form of IP which people find particularly difficult because the potential ideal of patents is mismatched against the reality.

    Patents are for inventions. The law of patents you would naively suppose would therefore protect inventors and provide them with rewards, recognition and economic, for their inventions.

    Patent law does partly fulfil this promise, but only within some anti-inventor constraints. From the perspective of an individual inventor, the constraints are:
    that ownership is passed to your employer (if you are employed to invent);
    the harshness of the priority rules (one day later in filing and you have nothing);
    the costs of obtaining a national patent or international protection and of maintaining it;
    the imperative to not publish the invention before it is protected balanced against the often pressing needs of academic peer recognition and/or the necessity to find and convince a partner in order afford these costs and costs of development;
    the heavy shadow of unknowable worldwide novelty and the obscurity of whether you the inventor have beaten what the ordinary skilled person(s) in the art could have done;
    the startling changes and costs required to progress from (1) the inventor’s idea, to (2) the practical realisation of the invention, to (3) the filed application’s claims in full patentease, through to (4) the granted claims you end up with;
    the limited negative right bestowed - no right to even use your invention but only a right to prevent another using your patented invention (You will end up with no guarantee you can use the invention you have patented without obtaining a licence a pre-existing patent, if you can.);
    lengths of time and costs of oppositions and the commercial uncertainty this breeds;
    the difficulty and costs of policing your patent (detecting infringements, finding the extent of the infringements and finding out who the infringer is);
    the certainty of a validity challenge, and the high costs of such a challenge to the patent by an infringer and the potential that your patent, even though granted at considerable cost, may well be found partially or wholly invalid (Why, since these government patent offices took all that money from me to prosecute, grant and keep my patents renewed, do they not either guarantee it is valid or at the very least hand me all this money back if the patent ends up being revoked by a challenger?).

    This gulf between ideals of protection and reward for inventors and the reality is often part of the attack on patenting as broken.

    I think that this gap is wider for patents, than it is for copyright works, trade marks, designs and confidential information, all of which have some remarkable quirks but none of which startle the general public so regularly as those found in patents.

  6. The translations are not mecahnical, they are peformed by computer programs (as such?)

  7. To Anonymous 11:32am
    The big surge in use of the patent system has come from China, not particularly known for its trolls.

    To Anonymous 2:32pm
    The translations are NOT performed by computer programs. They are performed by computers which have been programmed -- just like my weekly wash, which is done by a washing machine that has been programmed.

    To Gentoo
    Every application to secure any IP right, or to dislodge someone else's, is gaming the system. That's why Game Theory is so useful.

    To everyone who thinks there is an analogy with the Cold War -- there isn't. The patent system is a legal which was established as a means of achieving particular ends against which its functional utility and cost-effectiveness could, and still can, be measured. The Cold War was a behavioural phenomenon which could only be changed by the respective sides changing their behaviour.

  8. Then they are being performed 'electronically', unless you believe the whirr of the computer cooling fans is number crunching in action. The next commentator will probably come back with some metaphysical explanation of the work done, demonstrating how we all clearly need to be concerned with more important events and our lives are too easy.

    The increase in filings is not coming from the UK, so the patent system may not be broke, but UK Innovation plc most definitely is.

  9. Could it be that we've been enjoying an increase in new products, services and processes _despite_ a broken patent system? One might argue that if the patent system that was reformed years ago, we could be much further along.

  10. Certainly the patent system does not favour the small business. Today's Daily Telegraph [last page of the business section] has a story, illustrated with a picture of an inventor burning his patent outside Parliament, about small businesses who cannot afford to take enforcement action against alleged infringers.

    On the other hand, without patent protection you would have anarchy. An example of what can happen when new technology has no effective patent protection is found in the early electric lighting industry. While Edison's filament lamp patent was upheld in the UK, in mainland Europe it was either declared invalid or not to cover competing lamps. The resulting free-for-all lead to savage price cutting, with customers getting lamps of poor quality and the inability of anyone to make a profit until the manufacturers got together and formed a cartel to fix minimum prices.

    Conversely, in the UK, at the conclusion of lengthy litigation that had prevented it from making a profit, the Ediswan company was able to shut down its competitors and have an exclusive monopoly in lamp manufacture for the domestic market for the last 6 years of the patent's life. While this did allow quality to be maintained, it limited the choice of lamps to the one design.


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