Patents backlog – symptom of a failing system

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.

4 Comments

  • Filemot
    24 Feb 2011 | Permalink |

    The EPO solution of charging renewal fees on pending applications would have a great practical effect on clearing the backlog fast.
    As discussed at yesterdays meeting with the Hargreaves panel member, the backlog is mainly a problem for freedom to operate assessments. Anyone who wants a patent quickly to reassure an investor can get one. Most of my UK patents grant within 2 years

    • DeepThunk
      27 Feb 2011 | Permalink |

      Two years for a UK patent! In my case it took over four years just to get to the examination stage.

  • Duncan
    11 Mar 2011 | Permalink |

    Re “The EPO solution of charging renewal fees on pending applications would have a great practical effect on clearing the backlog fast.”
    While “Clearing the backLog, It may also prevent an idea from ever coming to the market place”. Most inventors have an abundance of faith in their ideas, but unfortunately not an abundance of money. (myself included).
    Rather than looking at the real problems, “System too complicated”, “Not joined up”,Ambiguous terms in the records, Databases, causing more complicated searches.. it always comes back to “More Money”.
    Maybe instead of “Whipping the Foal before it can stand”, we should be seeking future financial commitment or a % of earnings from Patents to Improve the system. This would also have its overheads but creating further financial barriers to Market early on will only force inventors to abandon their Ideas, are we sure we want to lose the next great invention to our greed and impatiences.

  • 16 Mar 2011 | Permalink |

    I think some major points have been missed:

    1. Employ more patent examiners. If you have a backlog you need more staff that’s all there is to it really.

    2. Lots of inventors file their own applications before anything has been worked out at all. Every application should be reviewed for 5 minutes and if there is clearly no detail on how it will work it should be rejected and stop clogging up the system.

    3. You shouldn’t be allowed to file without drawings, claims and all the other detail. Currently you can file with a description alone. Frankly why do they even allow this?

    4. Insist every application has a commerical search report attached. It would cost the individual a few hundred pounds but would put off most people from ever submitted when they realise how much other prior art there is. This would save the UKIPO months of work on applications that will never get through.

    Any thoughts on these ideas anyone?

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