Proposals for Reform of the Patent Examination System
We collect here proposals for a reform of the patent examination system. In particular, FFII and others have endorsed proposals for privatisation of this system by careful distribution of burdens of proof. Such a reform would result in debureaucratisation and, by consequence, dissolution of the European Patent Organisation, which some have called "an intergovernmental creature that no longer has a place in today's European Union". A lean privatised patent examination system would, as a side effect, also solve the problems of the Community Patent.
News & Chronology
2005-05-14 US Wired: Web could unclog patent backlog: New York Law School professor Beck Noveck proposes to replace patent examination by peer review
- 2005-07-08 phm creates this page
2000-12-00 FFII proposes "5 legislative initiatives for protection of information innovation", among them privatisation of the patent examination system
Privatise Patent Examination
- Already in the 1970s and before, law scholars have repeatedly said that the patent examination system performs too poorly to be justified in the long run.
- The speed, cost reliability of patent examination was never at an acceptable level and has greatly deteriorated during the last years. Patent Offices make money by handing out pollution permits, and at the same time act as professional lobbies in favor of pollution. This community has become a danger to democracy in the EU, as was seen in the case of software patents and the way they handled the matter through the Council's patent policy working party.
- Most patent offices in European do not conduct a substantive patent examination. E.g. in France patents are very cheap due to this fact.
- It would also be possible to completely abolish the patent examination procedure as a whole and instead merely specify a procedure and format in which patents must be published on the web.
- The publication of such a patent of course constitutes a (potential) pollution of the public sphere, and the responsibility for this pollution, in particular for pollution by invalid patents, would have to entail a financial burden to the pollutant. Thus, if someone else proves the patent to be invalid, the pollutant would at least have to recompense this person for his research efforts.
- Private insurance companies should be encouraged to act as patent examination authorities. They would then certify the validity of the patent in return for an additional burden of responsibility, i.e. a higher recompensation to be paid for anyone who proves the invalidity.
- The EU patent language problem could be solved by (1) requiring a publication in one national language plus an intermediate Logical Language which can be automatically translated with some degree of intelligibility to other languages (2) requiring an idiomatic translation to the member state language at least 1 year before enforcement starts in that member state.
- All this would not require creation of any EU Patent Office and it could even allow dissolution of the EPO and national patent offices.
Parallels from Copyright Registration
Lawrence Lessig and others have proposed registration and renewal procdures for copyrighted works after some time, so as to enlarge the public domain and reduce transaction costs (mainly lawyers costs) for those who want to build on old works. These proposals were widely supported but eventually failed in Congress due to resistance of the lobby groups such as MPAA (Motion Picture Association of America) and RIAA (Recording Industry Association of America), who say that the bureacracy associated with registration and renewal is too burdensome. To allay their concerns, Lessig argues for a system that requires no involvement of any Copyright Office:
- The important formalities are three: marking copyrighted work, registering copyrights, and renewing the claim to copyright. Traditionally, the first of these three was something the copyright owner did; the second two were something the government did. But a revised system of formalities would banish the government from the process, except for the sole purpose of approving standards developed by others.