- While patents provide a vital incentive for innovation, the granting of overly broad patent protection, together with restrictive or restricted licensing of IP, can impede the development of the next generation of products and reduce competition. The practice of obtaining patents defensively also appears to be widespread in some industries, where rights holders have no intention to develop marketable products or to license the IP to others, but wish to prevent others from undertaking research and development in similar areas. Others may hold defensive patents and seek to generate revenue not by commercialising them, but by seeking out potential infringers and proposing licensing agreements to them under threat of litigation. While such practices are legal, they may hinder innovation if the original patent was dubious or too broad in scope, and impose barriers to market entry for those who have legitimate innovations but are unable to risk litigation. Use of a patent in a way that places a burden on innovation rather than stimulating it will not be achieving the objective of the patent system.
Gowers Review of Intellectual PropertyAt the Enterprise Conference on 2 December 2005, the Chancellor of the Exchequer announced that, as part of the Pre-Budget Report 2005 package, he was asking Andrew Gowers to lead an Independent Review to examine the UK's intellectual property framework. The Open Rights Group has been formally invited to participate. We are currently drafting our submission and wish to include your thoughts and opinions. We have reproduced the Call for Evidence below and invite you to contribute - just hit 'respond' next to the paragraph you wish to comment on. Many of the questions asked by Andrew Gowers in this review are very focused, but you should feel free to comment on the issues and the wider implications rather than feel obliged to provide specific answers. If you want to talk about issues not raised by this call for evidence, please do - just leave your comments on the Introduction. |
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March 14th, 2006 at 17:28
Whilst defensive patents are a legitimate business strategy, I believe they should not be allowed. If a patent is not being used commercially then it should be revoked, or some similar action. It is unfair for one firm to hold a monopoly in the market by preventing other firms developing the same invention that just happen to be patented in the past. There is no benefit to anyone other that the firm who holds the patent. The consumer doesn’t get a product they may have had originally, and there is no competition encouraging innovation.
March 16th, 2006 at 11:34
I worked for Canon, and went on their patent course in Tokyo. At the time, Canon was second in the world to IBM in filing patents, filing about 70,000 patents per year (this figure may seem high but Japanese patents tend to favour a single major claim so a typical western patent may become several separate Japanese ones). The company tended to file about 30% invention patents, and about 70% tactical patents. There is also no clear boundary to ‘tactical’ patenting – many patents have some ‘tactical’ nature as they anticipate the finished product and its market.
Tactical patenting is not necessarily an immoral thing to do. If you company has a large and effective patents department, then you should have a collection of bright people who can spot ‘crossover hits’ were an innovation in one field can be applied in a completely different field. Such ‘crossover hits’ are often very valuable – they can go directly to a useable product without the heavy R&D risk. And, if they don’t to it, someone else will.
What we need is some way of reducing tactical patenting. We can only do this with clear and fair rules. Disallowing software patents is a very good case of such a rule. I do not believe there is any absolute argument why software patents should not be allowed – but I do feel the arguments for allowing them are very poor, and preventing them will also do away with much unnecessary work. If I was still doing patents for Canon, I would regard a worldwide ban on software patents as a relief – relief that we no longer have to work against the threat of being tactically outmanoeuvered by other
companies. The other side of the coin would be we would also lose the slight possibility of downing a hated rival using a software patent, but I could happily forgo that and all the risks involved.
MEMS technology allows us to make much smaller versions of familiar designs. It is far from clear whether translating a maroscopic device into a microscopic, integrated device is invention or just good design. Patenting a second use for a patented drug is allowed – this encourages us to re-investigate already tested compounds instead of having to endlessly innovate new ones, but it is capable of being used tactically. However, there seems little case for anti-tactical patent rulings in these fields unless we first forbid software patents.
March 16th, 2006 at 21:55
At the point of inception I would suggest it is very difficult to differentiate between a ‘defensive’ and ‘innovative’ patent.
I have seen research that has resulted in patents that become part of a companies defensive patent portfolio. At the time of research, the development was being done for innovative reasons, but for reasons of cost, strategy etc the innovation is put on the backburner over time.
Hence it is likely to be difficult to stipulate what is a ‘defensive’ patent and what is an ‘innovative’ patent, particularly at the time of filing, and it is difficult to see how this can be resolved without making the patent system even more unwieldy (e.g reviewing the use of a patent over time)
April 18th, 2006 at 18:26
Well spotted! Patent “trolls” must be (somehow) cut out of the system – though, unfortunately, the way things are heading at the moment they will be granted further legitimisation. These “companies” are the terrorists of the patent system and their patents of mass destruction usually cause grief for both the big boys *and* the little guy. How to resolve it? Well, require patent holders to use their patents actively and not just sit and sue.