Is the current system of obtaining a patent a help or a hindrance to innovation?
British innovators filed 5,736 patent applications at the EPO in 2018 and in 2017 22,072 applications were filed with the IPO and PCT.
Successful applications afford a license to the inventor, which then protects the idea from being copied for a period of time, but the practise has its detractors and patent disputes can take years to resolve.
EPO report shows why the future is patent pending
As noted last week, some believe that the patent system is as much a brake on innovation as an incentive for inventors whilst others see their first successful application as a key moment in developing their business.
Is the patent system fit for purpose, or does it need reforming? According to 49 per cent of poll respondents, the basic concepts are sound, but the practical aspects need revision, followed by 38 per cent who think the system needs wholesale revision. The remaining 14 per cent agreed that the system is fine as it is.
In the comments that followed, Helen Waugh said: “I manage patent portfolios and have worked in patents & innovation since leaving research. There is some truth to the statement that a patent is only worth having if you defend it, although I would debate that you need to defend it in 3 countries in order to demonstrate it’s worth. I would like there to be more grants available to fund patent costs for SMEs and lone inventors as patents can be very expensive indeed.”
Another reader speaking from experience was Ian Leppert, who said: “Patents are absolutely no use unless you have serious finances, time & commitment not only to ensure the patent(s) are as good as they can be, but to also monitor and enforce them. The Patent process also needs to be changed so that it gives the owner at least 5 years PROVISIONAL protection to allow them to ‘commercialise’ any products etc. It can take minimum 5 years just to get a working product finalised which uses up 25% of the Patent life. In addition, you can spend 3 years taking legal action (as I had to do) and a small fortune of your finances that robs Inventors like me of our ability to continue any form of R&D. I tried to introduce a number of new technologies into the Powertrain market and faced nothing but thieves and manipulators in my search for a reliable, honest, ethical partnership.”
Most of the remaining comments received so far reveal more negative experiences, but how had the patent system affected you? Let us know using Comments below, but familiarise yourselves with our guidelines for the content of comments before submitting.
An interesting poll, but a little unclear as to which ‘patent system’ you are talking about – filing an application through the UKIPO and filing an application through the USPTO are two very different things, and two very different patent systems. It would be interesting to know if people voting in the poll have experience of any patent system, whether as an inventor or as someone who works with patents.
That’s a good point; the one I had in mind was the EPO’s.
Should be canned. Copyright is better. Rather than a simple means of protection, patents have resulted in hijacking by academia as a booster for Research Assessment purposes, and others for preventive ‘games’. Brunel for one was anti-patent : “necessity is the mother of invention” .
The patent on the crank held back the development of engines for years and years!
Investors need to be less reliant on patents as ‘assets’, i.e. fig-leaf protection of their interests, and concentrate on the ‘time to market’ parameter
My experience of a patent dispute is that it can be used by a large company to severely disrupt a small competitor.
If a large company takes an innocent small competitor to court over a patent infringement then it becomes a case of ‘guilty until proven innocent’.
The small competitor has to prove that it does not infringe the patent and that becomes extremely costly when lawyers are involved.
When the small competitor is proven ‘not guilty’, after a case that can cost hundreds of thousands of pounds, it is very rare that costs are awarded against the large company that originally brought the case to court.
Thus it becomes a method by which a large company can severely curtail the finances of a small competitor and obliterate potential investment finances – especially harmful if the small competitor is privately owned with limited R&D funds.
I’d say generally helpful. One reform I would like to see is the term for pharmaceutical patents increased to 25 years, so instead of – say – 15 years of negative cash flow in R&D + clinical trials, followed by just 5 years to make a profit after which anyone can open a ‘generic’ manufacturing plant in India – the inventor reaps a much greater reward in exchange for a relatively small delay before the free-for-all begins.
This could really stimulate R&D and new products development
Trevor, under the current EPO Supplementary Protection Certificate system, pharmaceutical patent life could be extended by up to 5 years, dependent on the date of grant.
Trevor, Why the negative cashflow? You don’t class investment that way. And as you hint at, the timescale is the thing that needs attention. So rather than stretch it even further, surely a war on delays both from bureacracy and from professional habits is the way forward. Counter to your suggestion, this could be done by the state actually reducing the life of patents: the sources of delay would then be under the microscope, and we would all benefit.
Patents provide no protection whatsoever, unless you can afford the vast sums demanded by patent lawyers to defend your claim, and if you are against a big company. you may as well forget it, because they can drive you in to bankruptcy and then will get acces to your patent anyway! Patents do stifle innovation, no company will sanction research into any area that is covered, or may be covered by any patents, and many companies purchase other companies to obtain IP in areas they know research is being done, and when breakthroughs are made, the submarine patent holders pop up, and sue the innovators out of their patents, and out of business. Dyson spend millions annually defending their patents, and it is said that the actual patent is worthless unless you have succesfully defended it at least three times in different countries. My suggestion would be to make a patent last for 5 years only unless you bring a product to market, or the patent lapses, and all the ideas covered in the patent become up for grabs again by everyone, except the company that failed to bring the product to market Most IP holding companies do very little research or innovation, they let others do the work, then sue to gain control of it. A very good friend of mine formed a company, and did several years research with three other partners, obtained a patent for what I will call a “bus routing device” The patent was drawn up by attorneys in the uk, and the product prototyped and shown to a “major European bus manufacturer” who promptly made a very small change to the circuit, and stole the idea, resulting in bankruptcy. when challenged, the company freely admitted to stealing all their work and research, and literally said “So sue us”
No need for further investigation! Look no further than the influence (malignant) of those groups paid more, the longer they take, more mistakes that make and more grief they bring. Step forward…….
I’ve found it impossible to do anything about my 30 inventions as I cannot afford patents, I’m forced to try to convince companies to sign an NDA with limited information, I’ve gotten nowhere in 20 years so gave up. patents are great when you are rich but when you are poor are an insurmountable problem.
I manage patent portfolios and have worked in patents & innovation since leaving research. There is some truth to the statement that a patent is only worth having if you defend it, although I would debate that you need to defend it in 3 countries in order to demonstrate it’s worth. I would like there to be more grants available to fund patent costs for SMEs and lone inventors as patents can be very expensive indeed.
Phll, please could you explain what you mean by ‘submarine patent holders pop up’? Whilst it used to be true of the US system, for a long time now all patents filed globally are published at 18 months from filing, if the patentee has done everything required by the patent office i.e. they have not withdraw or abandoned the application. So frequent patent searches in patent databases, such as Espacenet or GooglePatent, should find any relevant patents.
Patents are absolutely no use unless you have serious finances, time & commitment not only to ensure the patent(s) are as good as they can be, but to also monitor and enforce them.
The Patent process also needs to be changed so that it gives the owner at least 5 years PROVISIONAL protection to allow them to ‘commercialise’ any products etc.
It can take minimum 5 years just to get a working product finalised which uses up 25% of the Patent life. In addition, you can spend 3 years taking legal action (as I had to do) and a small fortune of your finances that robs Inventors like me of our ability to continue any form of R&D.
I tried to introduce a number of new technologies into the Powertrain market and faced nothing but thieves and manipulators in my search for a reliable, honest, ethical partnership.
http://www.eurekamagazine.co.uk/design-engineering-features/technology/gear-system-is-radical-but-workable/3414/
So, yes the Patent process needs changing:-
1) To provide a “Grace Period” before enacting the full 20 year protection period,
2) The Patent administration process needs to provide an initial Arbitration process that allows them to either enforce Patent rights or at least provide “guidance” to the Courts,
3) The Courts need to establish a RAPID process whereby they should establish whether any Patent Defender or Violator is abusing the Patent process to force smaller companies out of business by radically affecting their financial abilities or destroying their ability to continue R&D, Marketing etc, prior to entering into full proceedings,
4) It is essential that the Courts inform and enforce the repayment of ALL costs of the winning party, including damages and compensation for lost time & finances over the Court period.
5) The courts MUST put in place a “RING FENCE” mechanism whereby larger companies must set aside Finances to cover the full cost and potential damages.
The fact is that it is the larger companies that abuse the Patent process and hence should have far greater regulatory and legal enforcement upon them.
If this isn’t available then there is no point in a small company, or particularly an individual, in utilising the Patent process.
I certainly will NOT be using the Patent process again unless I can find a very large, wealthy Sponsor to aid in any Patent protection.
P.S. The UK/European Patent process has NO TEETH when it comes to the likes of China, Russia, America etc as those countries are renowned for utterly abusing such systems. They have some of the worst companies to try to partner or do business of this nature with.
I really don’t understand just how easily ‘corrupt’ people can be as it is clear from my experience that those companies I’ve approached have management who seem to think that trying to gain your ideas for nothing or ripping you off is somehow legitimised and credits them with great Kudos from their companies.
It seems the Win-Win scenario never really exists; and those companies who publish great sounding “Ethical Governance” on their websites are more than hypocritical.
Or maybe I just haven’t found an ‘Ethical’ company yet – is there really one out their?
The Patent system is broken and does not work to reward individual inventors and small R&D companies. I have more than 50 patents granted to me, and have spent many hundreds of thousands of dollars with patent attorney’s, so know first hand all the issues that are failing the current system. Many have already been stated above, but I have found that the current patent system does not achieve its stated aims, and because of the many upfront fees is preventing many worthwhile inventions from getting to the market and being commercialized. One way of improving the current system would be to not charge any renewal fees until the invention actually makes some money. After the term of the patent is used or any renewal fees are not paid the patent should then have the same rights as copy right. The real issue is simply that an inventor needs all the money they can get their hands on for doing the research and development of the invention, and patents are an important part of getting financial backing, investors want some sort of intellectual property security before they invest in a new idea.
A, timely, publication by the European Patent Office showing the benefits to SMEs of patents and other forms of intellectual property rights – https://www.epo.org/service-support/publications.html?pubid=192#tab3
A colleague wrote a nice summary here – https://www.reddie.co.uk/2019/08/23/smes-using-intellectual-property-rights-are-more-likely-to-achieve-high-growth/
Tony N comments about the patent on the crank shaft holding back development on the petrol engine, is only half the story, the people developing the petrol engine could have paid a royalty or licence fee, or did that not occur to them ?
In 1899 the U.S.A. Commissioner of Patents Mr. Charles H. Duell, was reported as resigning because he claimed that ” everything that can be invented has been invented. ” Well whether that is a myth or a fact, it is true to say that there are many followers who believe that statement to be true. You may have read the article in the Advertiser Newspaper dated 16th May 2012, titled “We’re an innovation backwater”, the article went on to say “Australia’s innovation performance compared to other OECD countries is “appalling”, a former Australian chief scientist says. In Adelaide for the annual conference of the Co-operative Research Centres Association, Professor Robin Batterham said that Australia had only one third the average number of patents of other OECD countries. “We are also near the bottom of the list on the OECD table for business and higher education collaboration,” he said. “If we are reliant on innovation then we are not doing so well. There is an argument that Australia needs to get smarter, but innovation does not come easily.” Prof Batterham said globally energy costs will continue to rise especially as developing economies mature. “No-one is immune to the mounting cost pressures,” he said.”
It is essential that the costs of inventing and receiving a financial reward are made much easier than currently available, and start with reducing the costs of the patent system, and expanding copy right to all patents.
I have probably already bored the pants off all readers with my radical view of patents(many previous posts) that unless and until their granting and policing is in the hands of the appropriate professional body (chemical, electrical, mechanical, etc -is as the medieval Craft Guilds did) (and not usurped by jumped-up clerks(*), masquerading as such) fitness for purpose in patents will continue to be denied to inventors. If what they (*)offer is so important: let them provide their skills gratis and take a 98% share of any profit? [Pigs might take wing?] I say 98% because that is the percentage of up-front patent expenditure presently completely wasted.
The ability to search for patents should stop us re-inventing the wheel, but I doubt very much that the average engineer ever uses the patents search functions to advance their work. I don’t think I have ever heard anybody suggest it in 40 years as an engineer, but it is an invaluable free resource. I patented (UK) a variable valve timing system back when Pontius was a pilot, but only ever had enquiries from agents wanting to lure me into the money pit. In fact the car companies stated that they could not speak to me for fear of me subsequently claiming some right to their own inventions. Interestingly, perhaps the system has never been developed because it is not now patentable, and the record temperatures are partly a result of that.
After I have a new invention, I usually put in a Provisional Patent, and then do a patent search before I move to the expensive completed patent application and PCT stage, to get a good idea if the patent is likely to be granted.
Nice phrase: My previous remarks surely still apply.
Whoever started the article upon which we are commenting did so with a reference to the Medieval Guilds who regulated and protected their members affairs. All I am suggesting is a return to such with the new guilds to which we, as professionals, belong. Either that or the free-up front and a massive share of later profits. Either would work better for invention than the present ‘scam’ perpetrated by jumped-up clerks, masquerading as professionals. Surely the very essence of a profession is that it is self-policing and improving. Never seen it from any level and type of lawyer. but I live in hopes?
It is possible to break a patent using design methodology and reverse engineering to come up with an alternative design, sometimes with an improvement.
As a design engineer I have worked on a number of “innovative” designs for a number of companies I personally would never ever consider applying for a patent again having been “burned” when I tried to patent a design and found the cost incredible
In Memoriam.
“On 31 August 1997 at 00:23, Paul lost control of the vehicle at the entrance to the Pont de l’Alma tunnel. The car struck the righthand wall and then swerved to the left of the two-lane carriageway before colliding head-on with the 13th pillar that supported the roof. The car was travelling at an estimated speed of 65 mph. It spun and hit the stone wall of the tunnel backwards, finally coming to rest. The impact caused substantial damage, as there was no guard rail between the pillars.”
Cause of deaths, in order of significance; No guard rail – Not wearing seat belt – Drunken driving – An inherently unstable conventional chassis.
Perfectly sober, expert steering control cannot easily correct a car’s directional instability. I recall a Monaco GP where an F1 driver lost it to a ‘tank-slapper.’ When Ayrton Senna’s steering correction sent him off track it wasn’t his error, it was just bad design. The same is true of Guy Martin’s crash on Mont Ventoux. The reason he lost control – the wrong fundamental chassis dynamics.
In 1989, I filed an application for a bicycle-specific suspension. The simple engineering principle is easily applied to a car, but my patent agent told me that’s a novel step, which called for a separate patent I couldn’t afford. If I were a wealthy man, I could’ve built a car with zero roll, zero pitch and a self-levelled, compliant suspension with accurate ride-height. Only Active suspension can do that, but it was banned by the FIA in 1994. Not all the teams could afford to run it, so it’s seen as unfair competition! They’d like to build cars with no suspension, but FIA tech regs rule it out.
Hundreds of thousands of people have died as a direct consequence of my intellectual property rights being stolen by a state-run protection racket. Patents must be free, same as copyright.
I think you’ll find that Japan has the highest rate of patenting. An application can be filed and the examination delayed for seven years. By that time, in other jurisdictions, renewal fees were costing me £1,500 per annum.