The UK Intellectual Property Office (IPO) issued an extraordinary statement yesterday. Its implications are well worth pondering by inventors who might be considering patenting, or are being ‘encouraged’ by Dragon’s Den types to patent their inventions.
Titled Patent Backlogs, it reports that unprocessed patent applications are a serious and growing problem worldwide, with over four million ‘waiting to be processed in the world’s major IP offices’. And that by 2015, waiting times could be a year longer than they are already. (We wonder of this takes into account the Chinese government’s recently reported aim of having Chinese companies and inventors file one million new patents a year from 2015.)
The patent system, in other words, is in a serious and deepening mess, though it may be an asymmetric mess: the US Patent Office receives close to half a million applications a year and rising, while in the UK, IPO filings are in decline and currently stand at a relatively puny 22,000 a year. (Which raises questions about why there should be a backlog at IPO!)
IPO makes the somewhat fanciful claim that: ‘Delays prevent new products from reaching their intended markets quickly; these delays deter R&D and reduce the incentive to create and innovate.’ We’d like to see evidence of this. Most companies are far more likely to say, ‘Stuff patents then – we’ll do it some other way’.
It’s well understood that a lot of the backlog is caused by multiple filings of the same application, meaning that the same information is examined many times over in many countries. Belatedly – because multiple filing has been happening for many years – some national patent offices are starting to pool resources to share the work. Will this significantly improve efficiency? We have to be sceptical, as we think national interests and prejudices are likely to get in the way.
The backlog problem strikes at the credibility of the whole patent system. So what is IPO going to do about it? The answer, in its entirety, is this: ‘Reducing patent backlogs is a key goal of UK government. The IPO is playing an active role in encouraging international cooperation between IP offices through worksharing to reduce backlogs.’
And that’s it. It would be good to hear them say, ‘We’ve teamed up with other IP offices and we’re already starting to have that backlog licked’. But no. They’re merely ‘playing an active role in encouraging international cooperation’. We all know what that usually means: a tireless exchange of platitudes, but no real action.
In the meantime, the business of invention and innovation has to go on, despite the failings of a patent system that would struggle to justify itself even without a backlog. Increasingly, pragmatic inventor/entrepreneurs are questioning the value of patents and deciding that there are smarter, cheaper and faster ways of protecting their inventions and products. That approach could become the norm rather than the exception.
IPO would do well to focus on the actual needs and means of innovators – many inventors and SMEs simply can’t afford patents – and look beyond trying to repair a sinking ship. The backlog is merely a symptom of a system that is fundamentally unfit for purpose.
The vastly increasing number of patent applications doesn’t indicate strong faith in the system. Rather, it suggests a system whose weaknesses are exposed when too many people try to buy into the supposed advantages. It’s the IP equivalent of pyramid selling – eventually, the whole house of cards falls down.
The fact that IPO has no practical, sleeves rolled up remedy for the problems it identifies suggests that it knows the whole system is a busted flush but hasn’t a clue what to do about it.