Patent System Research Articles

On the Need for Patent Speed

The “Million Milestone” chart found on the website of The United States Patent and Trademark Office (USPTO) is a timeline of the eleven million patents that the office has granted since 1836: a visual depiction of patenting as expeditious and accelerating. With the chart as the backdrop, the narrative focus of this essay is on the third marker on the timeline, patent 3 million, granted to Kenneth R. Eldredge for “Automatic Reading System” on September 12, 1961. Two overlapping lines of inquiry are pursued. First, looking behind the chart in order to locate the history of patent three million as it happened, which is in conjunction with the 125th anniversary of the 1836 Patent Act, the moment when the “Million Milestone” begins. Second, looking at the chart to unpack how “Automatic Reading System” became part of an evidentiary chain that in 2023 seeks to convince us that accumulation and quantification stand as proof of technological progress. The overall objective of this essay is to show how the patent system synchronizes time and numbers in order to create knowledge about itself as a system, introducing the term tempo-metrics in order to account for the specific intersection of calculation and commemoration where such self-fashioning gains specific momentum.

Unitary system of patent protection as an element of innovation policy of the European Union

The article analyzes the process of establishing a unitary system of patent protection in the European Union as an alternative to national and regional systems and its importance for enhancing the innovation potential and economic development of the EU. It examines the preconditions for the transition from national patents to regional (and subsequently unitary) patents, which are based on the intention of the EU Member States to overcome the territorial principle of patent rights by extending the patent owner’s exclusive rights beyond the territorial borders of one state.It is noted that the transformation of the economy into an innovative one, in which a key role is assigned to intellectual property rights (as a precondition for innovation), has actualized the issue of effective intellectual property legal protection, in particular, concerning patent rights. Since 1997, the European Commission has been highlighting the importance of patents as one of the tools available for protecting innovation and the need to reform the European patent system to increase Europe’s innovation potential and competitiveness. Subsequent decisions of the EU Council were taken to fulfill this task, resulting in the introduction of a unitary system, which includes the European Patent with Unitary Effect (the Unitary Patent) and the Unified Patent Court, as of June 1, 2023. As a result, inventors can obtain unitary patent protection based on the Unitary Patent in all EU Member States participating in the enhanced cooperation mechanism.It is concluded that the unitary patent protection system extends the territoriality principle beyond the national borders of the State within the EU borders, but does not destroy the basic principles of intellectual property rights. In contrast, the article examines the US case law, which demonstrates its own approaches to understanding the principle of territoriality and the presumption against extraterritoriality of patent rights, allowing in certain cases the US patent holder to extend its monopoly to foreign markets.

Resolving the patents paradox in the era of COVID-19 and climate change: Towards a patents taxonomy

This paper revisits the patents debate and considers the role of intellectual property rights and their impact on society in the context of inventions designed to protect global common pool resources (CPRs) such as public health and the environment. A review of the theoretical and empirical literature suggests that there has never been a clear consensus among researchers on the benefits of the patent system and intellectual property rights. As Robinson notes, “The patent system introduces some of the greatest of the complexities in the capitalist rules of the game and leads to many anomalies.” We explore these anomalies by specifying a taxonomy of patents for different classes of inventions, including inventions to protect CPRs. This includes vaccines and inventions that reduce externalities, such as, CFC gases and greenhouse gas emissions. In these instances, the effectiveness of innovations depends critically on rapid global diffusion. Our theoretical analysis utilises Ostrom's CPR dilemma to analyse the complexities surrounding innovation and CPRs.We find that the effectiveness of innovations to protect CPRs depends on industrial characteristics and the wider regulatory environment. Empirical evidence is brought to bear on these conclusions via 2 case studies that each embodies a natural experiment; one on vaccines pre- and post-TRIPS and one on environmental technologies to reduce CFC gases and CO2 emissions with and without an agreed UN Protocol. The insights gained are explored in our policy section. Our analysis suggests the need for a more nuanced approach to patent policy that is embedded in the wider context of innovation systems and takes account of the anomalies raised by CPRs. For CPR protecting innovations subject to positive network externalities, we advocate that policy should prioritise diffusion over private incentives for R&D and use alternative policies to patents to stimulate investment in R&D.

China’s Insertion in the International Patent Regime: Shaking the Rules Widens the Development Policy Space

Much has been written about the effects of China’s rising role in global economic governance, but the consequences for the development policy space have received little attention. This article examines whether China’s mode of insertion in the international patent regime widens the restricted policy space of its developing country partners to shape their national patent system in a way that facilitates technical progress. Results show that China adopts a minimalist interpretation of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement as it incorporates its flexibilities at the bilateral and national levels, thus preserving and potentially widening its partners’ development policy space.

Grace Period Harmonization in the Open Innovation Era

Abstract This article urges European companies to discard their prejudices and work with their patent offices to adopt a grace period in the European Patent Convention (‘EPC’) in exchange for the United States’ reconciliation of the definition of the prior art, harmonizing the differences remaining after the America Invents Act (AIA). The negative view that European companies have taken of a grace period is contrary to the experience in Japan, where an unrestricted grace period helped large companies engage in open innovation and increase their use. Empirical studies have substantiated the negative impacts of the lack of a grace period on European SMEs and Universities. After highlighting the differences in the prior art under AIA and EPC, this article will conclude with a proposal for a 12-month, U.S.-style grace period to harmonize the patent systems in Paris Union member states. The adoption of this proposed grace period would result in a win-win outcome for both the United States and European countries.

The “Perfect Dress”

The process of “knocking off” the work of others has been an integral practice of the United States ready-to-wear industry since the 1890s. In the 1930s, the Fashion Originators Guild of America (FOGA) created an internal system to protect its members’ design work, but in 1941 this system was declared in restraint of trade, and the next best protection option laid in the US design patent system. This research examines the 4,523 dress patents issued in the United States between 1936 and 1942, focusing on the designers and/or manufacturers represented and the process and timing of patent applications. Analysis of select court cases of design patent infringement, including a case study of a patent for “The Perfect Dress” by leading FOGA member and ready-to-wear dress manufacturer Samuel Zahn, demonstrates the difficulty of protecting a patented dress design and the complicated nature of what constituted an original design.

Predicting the value of Chinese patents using patent characteristics: evidence based on a Chinese patent auction

Abstract This study revisits the question of predicting patent value with observed patent statistics, exploiting a rare public auction of patents in China in which the starting prices are used as approximates of patent private value. Family size and the number of assignees come out as the most consistent indicators, while notably, forward citations turn out to be not important. This discrepancy with past studies is investigated. We propose some of the institutional features in the Chinese patent system could lead to the forward citations not as informative as their counterpart in other jurisdictions. The findings bear important implications as Chinese patent data are increasingly being used in innovation studies.

Do patents really foster innovation in the pharmaceutical sector? Results from an evolutionary, agent-based model

The role of the patent system in the pharmaceutical sector is highly debated also due to its strong public health implications. In this paper we develop an evolutionary, agent-based model of the pharmaceutical industry to explore the impact of different configurations of the patent system upon innovation and competition. The model is able to replicate the main stylized facts of the drug industry as emergent properties. We perform policy experiments to assess the impact of different Intellectual Property Rights (IPR) regimes changing the breadth and length of patents. Results tend to point against a strong patent system. Simulation experiments suggest that the extent and duration of patents shall, if anything, be set to minimum levels. This holds even when one assumes a strong response of R&D incentives to appropriability conditions and when taking into account information disclosure effects triggered by patents.

To Have Your Cake and Eat It Too: Sufficient Disclosure of Inventions in the Light of the Polish Supreme Administrative Court’s Judgment of 24 April 2022, II GSK 1724/18

The subject matter of this opinion is the Polish Supreme Administrative Court’s judgment on the invalidity of a patent concerning a calcium-magnesium fertiliser due to its insufficient disclosure. This paper presents the course of the invalidation proceedings before the Polish Patent Office and administrative courts against the background of the Polish Industrial Property Law and the Polish Patent Office’s Guidelines concerning sufficient disclosure of inventions. It also briefly refers to the EPC and EPO practice on the standards of sufficient disclosure, including the recent EPO decision G2/21. Finally, it offers approving comments on the judgment itself, notices the practical impossibility of remedying the failure to disclose enough and mentions current systemic challenges to the requirement of sufficient disclosure as a fundamental rule of patent systems.

A New Patent Mediation and Arbitration Centre for Europe

With the Unitary Patent (UP) and Unified Patent Court, some Member States of the European Union are creating a new system that reaches beyond the existing European Patent (EP). The goal of the Agreement on a Unified Patent Court is to reduce fragmentation and provide more uniform territorial patent protection by establishing a centralized patent court. In an effort to promote alternative dispute resolution, the Agreement also provides for the creation of a Patent Mediation and Arbitration Centre. This is the first statutory mechanism that recognizes the availability of arbitration for resolving certain types of intellectual property (IP) disputes at an EU-wide level. With thirteen states having ratified the Protocol on Provisional Application, the entry-into-force clause has been triggered and the last part of the preparatory work has commenced. The new system is expected to be fully implemented in early 2023. This article first introduces the new Centre and its role within the framework of the Unitary Patent System (section 1). It then explains the operation of the Centre (section 2) and analyses the Centre’s impact on the arbitrability of claims relating to patent invalidity or scope (section 3).

Indonesian Patent Law Reform for Simple Patent Innovations on Achieving Welfare State Objectives

The main focus of this research is to examine the legal protection of simple patent innovations within the Indonesian patent system, considering their substance, structure, and legal culture. The objective is to advocate for the reformulation of regulations concerning the social and economic utilization of intellectual property, specifically simple patents, in order to address their impact on public interest from a welfare state perspective. The current regulations governing simple patents demonstrate monopolistic and individualistic tendencies. This study utilizes a normative juridical research method and employs a statute-based approach to critically analyze the provisions of Law No. 13 of 2016, commonly known as the Patent Law. The research findings indicate that the current regulation fails to adequately support inventors of simple patents. The existing first-to-file registration system, resembling that of regular patents, has resulted in low rates of acquisition and registration for simple patents. Consequently, it can be concluded that the regulation of simple patents under the Patent Law does not favor inventors of such patents. In order to rectify this issue, it is crucial to reformulate the legal protection of simple patent innovations based on the principles of the welfare state. The ideal formulation of the Patent Law should take into account the norms and values prevalent within the inventor community, thereby necessitating a reformulation of the legal protection system rooted in the substance, structure, and legal culture in Indonesia.

Noticing Patents

Patents take the form of public letters that the U.S. Patent and Trademark Office (USPTO) actively disseminates. Whether these documents sufficiently provide the public with notice of the technologies they describe, as well as the proprietary rights that they assert, has been subject to long-standing debate. Many commentators conclude that patents are often filed too early in the research and development cycle, are deliberately drafted in a vague or obtuse manner, or are simply too numerous. As a result, identifying the relevant patent landscape is not just difficult for technology implementers, but possibly undesirable as a matter of innovation policy. Yet prior scholarship has seldom acknowledged current statutory mechanisms to improve the notice function of patents after they issue. This Article endeavors to fill that gap.
 Congress has long encouraged intellectual property rights holders to identify their patents on the products they sell. Patent marking has traditionally occurred on physical products or their packaging, although it has been recently extended to Internet-based virtual marking. The marking statute stipulates that patent proprietors that fail to mark face severe remedial restrictions when challenging infringers. Congress has assigned the Food & Drug Administration (FDA) a part in providing patent notice as well. In keeping with federal legislation, the agency maintains two publications, commonly known as the Orange and Purple Books, that act as a patent clearinghouse for approved drugs and licensed biologics.
 The role of a patent within the marketplace provides perhaps the most valuable form of notice that that instrument may offer. Yet the marking statute and FDA publications suffer from some apparent flaws. In combination they project a failure to identify all patents that are relevant to the product, favor patent trolls, involve dubious practical workings, promote misleading advertising, and impose punitive sanctions in comparison to the notice requirements of peer intellectual property rights. For its part, the FDA has proven an untutored and unreliable patent publicist for the past four decades.
 This Article offers specific suggestions to improve the notice functions of patents after they issue. It calls for the USPTO to develop and populate its own virtual marking database that correlates individual patents with the marketplace. It also encourages the FDA to take further steps to counter abuses of the Orange and Purple Books and to accelerate their patent notice functions. Finally, this Article takes broader lessons from this effort, offering pathways for policymakers to look beyond the patent instrument as they endeavor to improve the patent system’s notice functions.

The Impact of Utility Model Patent Quality on Export Performance in China: A Moderated Mediation Effect Model

Utility model patent quality is vital for emerging countries to cultivate a strong domestic market and increase openness. Given China’s high-quality development, this study incorporates enterprise utility model patent quality and export domestic value-added rate (DVAR) into a unified analysis framework to explore their relationship using authorized patent data and financial and customs data of Chinese industrial enterprises from 2002 to 2014. The utility model patent data used to support this study’s findings were provided by the Incopat Patent Database, while the enterprise financial data and customs data were supplied by the RESSET Database. The empirical results show that: (i) utility model patent quality significantly contributes to enterprises’ export DVAR; (ii) factor-intensive heterogeneous analysis indicates that the utility model patent quality of capital-intensive enterprises has a more significant promotion effect on DVAR; (iii) the price–cost markup and the relative price of intermediate goods are crucial domestic channels for utility model patent quality to promote DVAR; and (iv) market segmentation moderates the mediating role of the domestic intermediate relative price. Therefore, the government should further improve the utility model system, focus on increasing domestic market advantages, and develop industry-specific patent guidance policies. This study contributes to the literature by exploring the influence of utility model patent quality on enterprises’ DVAR using an optimized utility model quality index, providing policy references for optimizing China’s utility model patent system and upgrading the import gains of enterprises. However, this study has some limitations, and future research should strengthen the subdivision of utility model patents in different industries and explore the economic performance of the combination of inventions and utility models.

Effect of Intellectual Capital on Financial Performance of Listed Agricultural Firms in Nigeria

The study examines the effect of intellectual capital on financial performance of listed agricultural firms in Nigeria. Proxies to measure intellectual capital are human capital and structural capital, while the financial performance is peroxide by return on equity. The study concentrated on the period from 2011 to 2020. Panel data was used to analyze the data sourced from the individual financial reports of the listed agricultural sectors. The sample adopted four (4) listed agricultural firms out the five (5) in Nigeria due to inconsistent data. The study employed panel regression model to estimate the key relationship between intellectual capital and return on equity. The result shows that human capital has significant effect on return on equity. Also, the result shows that structural capital has no significant effect on return on equity. The study recommends that managers of agricultural firms should put great emphasis on human capital investment, by improving employees’ quality by continuous training, and also to recruit high-level talents. Also, the management should pay attention to the accumulation of proprietary knowledge base such as the patent right and information system.

Pathology of the Inventive Step Requirement in the Patent Law with a Look at Iranian Law

The of the inventive step requirement, which apparently guarantees the growth of innovation and pursues industrial and economic development, despite enjoying some benefits, has always faced challenges, and in some cases such challenges are in conflict with the basis of the patent system, and it shows that the patent system is not always socially useful. The analysis of the mentioned challenges is mainly based on the economic principles and assessment tools of the requirement, i.e., examiners and person having ordinary skill in the art. Iran's patent system can also be criticized in terms of legislation and implementation and needs to be reformed. In this article, we intend to first examine the economic pathology regarding the assessment of the inventive step requirement in the patent system, then present the appropriate criterion that is similar to the copyright system, and explain the necessary suggestions.

Farm Fields as Toxic Sinkhole

Farm Fields as Toxic Sinkhole

A Study on the ‘Patent Misuse’ as a Patent System that Encourages Innovation - Focusing on Discussion and Cases in US -

A Study on the ‘Patent Misuse’ as a Patent System that Encourages Innovation - Focusing on Discussion and Cases in US -

The impact of language translation quality on commerce: The example of patents

Language matters, and it is an overwhelming stylized fact that language translation is an unavoidable part of global business. In this paper, we quantify the impact of translation difficulty reflected by the presence of multiple-meaning words in the original text. We focus on international patent applications because patent prosecution is nation-based. An inventor who seeks patent protection in a foreign jurisdiction with a different official language will need to file a translated version of the same document. Our estimates show that applications with more ambiguous original (English) text, are up to 25 percentage points less likely to receive a grant in the non-English jurisdictions (China, Japan, and South Korea). The results suggest that language translation difficulty can serve as a potential source of distortion in the global patent system. Ultimately, such translation difficulty may reduce the level of investment in global innovation activities, potentially leading to significant welfare loss. These findings serve to illustrate why international businesses should have adequate language translation strategy to address any translation difficulty arising from the presence of ambiguous words even when the deal involves the cross-border transfer of highly codified knowledge such as patents.

Legal Characteristics of the Quality of Patents in the Sphere of Information Technologies: Statement of the Problem

Patents are an important element of economic growth that promotes innovation through the creation of new scientific and technological knowledge. The impact of patents on stimulating innovation and economic growth is undeniable. At the same time, the role of protecting the results of intellectual activity is emphasized in order to increase competitiveness and increase applications. As a result, the number of patents for applying new technologies and attracting new participants within the system (i.e. high-tech entities, research institutions, start-ups and networks) has grown exponentially, jeopardizing the future functioning of the patent system. Patents are still increasingly used by business entities and government research organizations to protect new inventions, IT solutions, technologies that generate new waves of innovation and contribute to changing the current national civil legislation of the Russian Federation.

Antisuit injunctions in SEP disputes and the recent EU's WTO/TRIPS case against China

AbstractThe existence of standard essential patents (SEPs)—and the associated litigation—has potentially disruptive consequences for the manufacture, marketing and distribution of complex products that incorporate many patented standards, for example, information and communication technology (ICT) products such as smartphones that incorporate a camera, video, web browser, wireless communications, text messaging, and so on, as well as an increasing number of ‘connected’ Internet of Things products such as wearable devices and ‘smart home’ devices. Indeed, SEP owners may use the patent enforcement system to prevent implementers of these technologies from bringing to market competing products that use the same standards. As is known, this raises concerns about competition in the market and the need to maintain interoperability to ensure the development of the ICT industry. One of the legal tools which can be used by implementers to (try to) neutralise SEP holders' anticompetitive behaviours is the ‘antisuit injunction’ (ASI). ASIs are not uncommon in common law jurisdictions while they are foreign to civil law countries within the European Union (EU). ASIs are particularly useful to SEP implementers when patent holders disrespect their commitment to license their patents on a FRAND basis. For example, a judge who is in the process of assessing whether the SEP owner complies with FRAND terms may at the same time grant an ASI to stop the patentee taking patent infringement actions in other jurisdictions until the FRAND litigation has been concluded. In February 2022, the EU filed a complaint at the World Trade Organization (WTO), arguing that China's use of ASIs prevents EU‐based companies from properly protecting their SEPs. Indeed, ASIs have recently been granted in several Chinese disputes, including in Huawei v Conversant and Xiaomi v. InterDigital. More specifically, China's Supreme People's Court held that Chinese courts can use ASIs to prevent SEP owners from filing disputes in any foreign courts to enforce their patents; and that anyone who does not comply with the injunction should be fined €130,000 per day. In the WTO case the EU notes that such a case law jeopardises innovation and growth in Europe, ‘effectively depriving European technology companies of the possibility to exercise and enforce the rights that give them a technological edge’. From a legal perspective, according to the EU, China's conduct is in violation of various Trade‐Related Aspects of Intellectual Property Rights (TRIPS) provisions, including Article 28 which grants exclusive rights to patent owners. The paper focuses on this EU–China WTO/TRIPS dispute and more generally, on the relevance of ASIs within SEP cases.