A little over a week ago, in a blog post written by Microsoft’s Deputy General Counsel Horacio Gutierrez started what will certainly become one of the most profound debates the patent and innovation industry has seen in a very long time, and perhaps the most profound debate that has occurred since Thomas Jefferson and James Madison argued whether the fledgling United States of America should grant strong patent protections or weak patent protections. Famously, Madison won the day convincing Jefferson that if the new nation wanted to encourage entrepreneurship, innovation and attract the best and brightest we needed strong protections. Jefferson was initially very skeptical, not wanting the US to turn into England, where patents were handed out as favors from the Crown to loyal subjects who were rewarded for being loyal or otherwise a friend to the Crown. Jefferson acquiesced and his views later substantially changed to the point where he realized that meaningful protections were indeed necessary and critical. This all could unravel before our eyes as a new push from Microsoft seeks to take patent harmonization to new heights with the ushering in of a global patent system and a global patent. The World Intellectual Property Organization will hold an international symposium in Geneva on September 17 and 18, 2009, which will focus on operational deficiencies in global IP systems.
This is no joke, and everyone who has an issued patent, has a patent application pending, is considering filing a patent application or works for, invests in or wishes to start a company based on proprietary innovations has a dog in this fight and must absolutely pay attention to what is about to happen. The stars are starting to line up and if those of us who know better and realize what a disaster it would be to have a global patent system, with one patent and harmonization of patent laws across the board do not stand up now it will likely soon be too late. The Obama Administration, far more than any other Administration in US history, is extremely and keenly interested in ushering in changes to the American system and the American way of life that would make us much more like European countries, and countries that quite frankly have long held beliefs that are antithetical to the American way of life. So while in times past when harmonization rhetoric would start surfacing, things are substantially different now and we simply cannot ignore the reality that the political climate may well be ripe enough to completely and totally undercut US innovation policy, which would be a tragic disaster for the US economy, which is with every passing day more and ore dependent on innovation and intangible assets
Global patent harmonization is not just wishful thinking about an ideal patent system. Rather, it is a necessity if national patent authorities are to overcome the substantial difficulties they face.
The logical next step is to accelerate the work underway to align patent approval procedures and application formats, including a common digital application, and to collaboratively set standards for patentable subject matter, adequacy of disclosure and enablement requirements, and the completeness of the examination record. Bold action is needed. Stringent criteria must be established and clearly understood so patent search and examination results can be accepted by patent authorities around the world.
Let’s not mince words here. This is code for the US needs to change its patent laws and become like the rest of the world, which is an extraordinarily bad idea with extreme consequences.
I have never been a fan of harmonization, and undoubtedly many will take what I say with a grain of salt. That is fine, and to be expected. The reality, however, is when it comes to patent harmonization the debate is always about how the United States can, should and/or must change its patent laws to become more like the rest of the world. There is never any discussion about whether what the rest of the world is doing makes any logical sense, rather only that the US is different and needs to come into line. Whether you like me, whether you agree with me and whether you are a fan of harmonization or not, everyone must realize that change for the sake of change, change to just become like others and for no other logical reason, is asinine! What every parent knows inherently — just because your friends do it doesn’t mean you should do it — is simply ignored and treated as if it is irrational when debating international policy and harmonization. If you do not understand that logic and reason must play a role in the debate then you are a part of the problem and the rest of us need to be the solution.
Lack of logic and rational thought simply cannot be tolerated when such change would cripple the US economy and lay waste to our way of life. If we are going to have a debate about what global patent law should be then bring it on and lets talk openly and honestly. The Europeans by and large have no interest in such a debate because they simply want us to capitulate and do what they do. Why in the name of all that is sane would we ever want to be like Europe? A loose confederation of states that claim to have one body of harmonized laws that are interpreted differently in each member country? Is that what we should aspire to? Of course not. We also should not aspire to losing high tech industry that needs to be based on intellectual property rights either. It should not come as a shock to anyone that, for example, the pharmaceutical industry is the strongest where the intellectual property laws are the strongest, and that is NOT Europe. Even as pharmaceutical companies in India become stronger and a larger part of that economy the laws are changing, which will only continue because growing countries actually understand that they need to protect their industries if they are going to grow, something that Europe either never knew or has long since forgotten.
Once again, let’s not mince words. We do already have a global patent system and global harmonization of patent laws. The United States patent law and patent system is the default standard because everyone wants a US patent. Does anyone actually get a patent in France? Does anyone actually get a patent in Spain? Does anyone want a patent in Columbia? I couldn’t tell you because the market in those places, and virtually everywhere outside the US is so small it would be crazy in most instances to even file a patent application in those and about 125 other countries. The reality is that if we want a global patent system all we need to do is negotiate with the British and the Japanese and we are practically there. Add South Korea and Germany and as far as I can tell the relevant innovation community is almost completely represented.
Allow me to also recognize that what Microsoft wants is to kill software patents so that they cease to be punished for infringing patents owned by substantially smaller businesses who had the audacity to invent first and seek a patent. How dare they! Really, what where these companies thinking? Didn’t they get the memo that Microsoft and their tech giant brethren are not to be questioned and certainly not to be sued. That is what this is all about, at least from this side of the pond.
Allow me to also point out that on the blog post that presented Microsoft’s position, namely the position announced by Gutierrez, one of the early comments was this:
I’d be for it if:
1) Patents only last 7 years or less
2) Software cannot be patented
3) Standardization of patent royalties is developed as well
Now we all know there are a lot of crazies out there that don’t allow a lack of knowledge or complete failure to understand to at all diminish their apparent god-given right to spew nonsense on topics they know nothing about. Having said that, it would be a mistake to consider this comment to fall into that category. There are those all around the world who either want no patents, or patents of extremely limited duration. There are many who become apoplectic at the thought that software could be patented. And there are plenty who think that if patents are to be granted there needs to be mandatory licensing for the good of the people. Never mind that taking profit out of innovation means there will be no innovation. Some would rather have no innovation if having it means that there is not universal freedom to use said innovation for free. This is mainstream thinking from a lot of very smart, influential and intelligent people.
Obviously, even smart, influential and intelligent people can and do get things wrong, but we cannot afford to simply treat them like the many crazies who are on the Internet or in real life. Public sentiment can be swayed, and politicians have the perpetual and incurable syndrome associated with having absolutely no spine. Once public sentiment turns it will be over. That is what the ACLU is trying to do with its frivolous lawsuit against Myriad Genetics, this is what the fear mongers are trying to do with respect to follow-on biologics, it is what the anti-patent crowd is trying to do with software and you can see the stars coming into alignment politically as the health care debate in the US needs to focus on cost reduction. That means those who innovate are going to get squeezed, which means less innovation, fewer vaccines, less live saving drugs. Of course, spineless politicians don’t really care about the future. The future for them is the next election cycle and making bad long term decisions is a way of life in governments all across the world.
I suspect this will be the first test of David Kappos. If he aligns himself with the interests of Microsoft, supports WIPO and other international attempts to force US patent law to abandon our principles and does not stand up for small businesses and independent inventors who will be destroyed by harmonization, we are in for a long and troubled few years. You see, international patent law favors the giant mega-corporation, not independent inventors, small businesses and start-up companies. In the US 70% to 80% of people are employed by small businesses, and as Bruce Springsteen famously says in My Hometown, which incidentally is also my hometown as well – Freehold, New Jersey – the manufacturing jobs are gone and they are not coming back. A global patent system and watering down of US patent laws is not just a bad idea, rather is would be a catastrophe. I just hope Kappos et al really understand and appreciate what the US and US economy would be with European patent laws.
Join the Discussion
30 comments so far.
Ron KatznelsonSeptember 14, 2009 04:35 pm
Your illogical inferences are breathtaking. By espousing the position that “to say we should not look for harmonization is taking a pure stand from the US point of view,” it is apparent that you still do not get it. This is not a “US point of view”. I was highlighting facts unrelated to the “U.S. point of view.” This view dates as far back as 1883 when the Paris Convention was finally signed. Due to differences in national laws, the Paris Convention relinquished the idea of a substantive uniform patent law and took a more realistic view, adopting only the principle of putting foreign patent applicants on an equal footing with domestic applicants. Later in the 1970’s and 1890’s, the Europeans – not the Americans, have attempted and shown that there are real barriers for harmonizing patent laws across nations having different legal systems. [For more on the European community’s failed attempts to fully harmonize its patent laws, see Kara M. Bonitatibus, “The Community Patent System Proposal and Patent Infringement Proceedings: An Eye Towards Greater Harmonization in European Intellectual Property Law,” 22 Pace L. Rev. 201, (2001); Christopher Heath, “Harmonizing Scope and Allocation of Patent Rights In Europe – Towards A New European Patent Law,” 6 Marq. Intell. Prop. L. Rev. 11 (2002)].
None of these accounts are accounts of a “US point of view”. Let me help you in the logical path you should follow: Do not focus on the fact that U.S. patent law is harmonized across 50 states in America. Focus on the fact that elsewhere, it is harmonized across none. Those who attempted to fully unify patent law in Europe did not fail because they adopted the “US Point of view”. You are more than welcome to “look for harmonization” – try doing it within the European Union first. If you succeed, come talk to us about global harmonization and “the US point of view”.
New HereSeptember 13, 2009 11:30 pm
“For example, it is not rare to find that a patent found valid in a British court is found invalid in a German court. It is ironic that Americans are asked to align such aspects of U.S. patent law, which are fully harmonized across 50 states, with those which are harmonized across none.”
If I did not understand you in my above post:
“So, to use 50 US states side by side with European states (countries ) with all those people, ideas arguments and to say we should not look for harmonization is taking a pure stand from the US point of view in my opinion.”
please correct me I just want to end this !.
No more, I have to stop on this one. I have spent too much time here over this already.
New HereSeptember 13, 2009 10:46 pm
I was not making any reference to the argument you made only the use of the 50 US states making the point about harmonization at the end of your post. I will make a reference to your argument soon. Iam not sorry to say, my comments as illogical as you feel they are do not have to agree with or follow your argument(s). I have made an effort to understand the harmonization argument as talked about believe that or not. I saw using the 50 US states as some reference in the harmonization argument making the point European states do not have the harmonization of their laws, as 50 US sates. I see the European states Mr.Katznelson as a collection of countries as they are not a union as the United States, being two different worlds without question in that respect. I said this was poor about your use of the 50 US states, I stand by it. Let me now reference your argument, it is in my opinion your argument. centered around one person’s view of harmonization is not clear nor is the case. Because the European states are different countries within a larger union and as such the European states are to have differences from one state to the other on laws and the harmonization of them. This in my opinion is a larger picture Mr.Katznelson, the harmonization the European states don’t have, is because people there have different ideas and arguments about this harmonization as the USA and its people do Mr.Katznelson. So, to use 50 US states side by side with European states (countries ) with all those people, ideas arguments and to say we should not look for harmonization is taking a pure stand from the US point of view in my opinion.
Ron KatznelsonSeptember 13, 2009 09:21 pm
‘Noise’ was correct. I had not suggested or even implied that the rest of the world should accept our patent/legal system. In fact, given the very arguments I made about the DIFFERENCES in the legal systems, such inference is entirely illogical: if the national legal systems are radically different, how could I have suggest that other nations accept or adopt our system? You apparently missed my whole argument, which was not about who’s system should the whole world adopt, but rather that a single global patent legal system as proposed by Mr. Gutierrez cannot be realized. Leave the U.S. out for discussion purposes, and ask why patent law harmonization as suggested by Mr. Gutierrez had not been adopted by the Europeans, who appear most vocal about the need for “Harmonization”. We should all pay attention and revisit the subject if, and when Mr. Gutierrez succeeds in the less ambitious goal of harmonizing patent law only across European states.
New HereSeptember 13, 2009 07:46 pm
I hope Gene will delete all of this from here, I find it only to trash space here with that having nothing to do with the subject of the topic. Let me point out this to you, you give me the idea that you are looking down upon people that seem less next to the view you have of yourself that seems to be your big problem. How you make a living must have nothing to do with people I would hope. If anyone cares what you think is my question, oh !, is that the problem ?, you don’t get the attention you think you should get ?. Maybe a long look at yourself would offer an answer that just maybe that its you that is not understood and those around you understand not saying anything about it to you, and you take it as respect you really don’t have !. Make a big point about an attack and you do the very same thing because you feel what ?. Say all of your nasty things about me I have been open here !; so whatever point you are making if anyone understands it other then you, go for it !. I have respect for Gene, this will be the last of the trash I add here …how about you ?.
I will read you here in the future, I don’t want the problem, bye !.
Noise above LawSeptember 13, 2009 06:03 pm
My object is not to ban or otherwise discourage you from the site. It is to point out to you that you are speaking gibberish more often than not. You may have some intersting things to say, and I always appreceate a different viewpoint (one that can be backed with coherent, logical thought). HOWEVER, most times I really can’t tell what your message is other than some general negative view about patents and patent attorneys. It is not that you are a nuisance per se, it’s just that it appears that you don’t care enough to think about what you are posting. If you don’t care that your thoughts are clear, why should I care about trying to decipher them?
I have also often lambasted MaxDrei for similar reasons. You may find it hard to believe, but I want you (and Maxdrei) to be taken seriously when you post. You are speaking largely to a very articulate, and yes argumentitive group, but that’s the makeup of your audiance. Ignoring just whom you are addressing is a very quick and surefire way to NOT make sense. You do care that you make sense and get your point across, do you not?
As far as Ron’s post and your comments to it, do you get why I posted the way I did? Your point was completely tangential to what Ron was saying and it was difficult to see if you grasped the point that Ron was making. In fact, Ron’s point can still stand AND he can agree completely with you that US patents are of very low quality when compared to other patents of the world (not that I know which way Ron believes -its just not material to his point). So you are quite incorrect when you think that you are posting to a basis of Ron’s post. More likely, since you don’t understand what Ron was saying, you were merely projecting your own views onto the situation. I call that Noise.
When it comes across that your reply has nothing to do with what you are replying to, on top of the rambling mostly incoherent structure of your writing style, why would anyone expend the effort to bother understanding you? As to this past post, don’t hurt yourself by patting yourself on the back – it was despite your writing that I understood (and frankly, guessed to a degree that I was less than comfortable with) what you were saying.
And I haven’t even begun to think about addressing THAT on the merits.
I will further disagree with your contention of what makes for a rich interaction. When you don’t show comprehension and you ramble and force people to guess what you saying, you are not enriching yourself or others. If the people you usually talk to understand what you are saying, chances are very high that they already think like you and hold the same thoughts and thought processes. From the looks of it – such shallow views are hardly “rich”.
New HereSeptember 13, 2009 11:58 am
I will make your day, I will return to just reading here and stop posting good enough ?, I know I will be happy for it !. There was no attack on Ron Katznelson. To say “attack”, thats personal, and that scope of what I said is too large because my challenge was specific to Katznelson’s basis of his last point of his post …please read Katznelson’s post. I enjoy when I can argue with people without the need for a set of agreed upon terms all the time, and what is not understood questions are asked that makes for a rich interaction. I make no requirements on people its just not real, and requirements limit the interaction that makes people, people.
My thanks to Gene, I do enjoy the time I read here and I will continue. It was never my intent to be a nuisance.
New HereSeptember 13, 2009 11:03 am
A “a difficult labor to read”, sure !, it seems you understood much as the long post of points made within seem to address my points on the money. I read you understand me very well and it seems to me the only problems are – have been my points of view on patents. On patents, all the law talk does not address that problem that most have being the poor quality of US patents does it ?, the answer is a matter of talking to other people in the world and not just inside the warm-fuzzy zone. I can only guess poor quality patents makes it hard to want to have other people in the world view them with a different point-of-view to point out the quality lacking or none at all, giving their objections with a result being the lost value of US patents in the world ?. On reference to my post above, again, to pick just the 50 US states is a sorry picture, no issue just I feel a better one could have been made when talking about something so imporant. So I ask you what was the reason for using only the 50 US states for the point made by Ron Katznelson seeing the point was about patent laws harmonized in the world.
Noise above LawSeptember 13, 2009 08:46 am
It is still a difficult labor to read your posts and guess what you are trying to say. However, I think this post is better than your usual ramblings in that I can guess at something this time.
My gues is that you are taking issue with Ron’s stand on harmonization from the vantage point that an American view shouldn’t be the only view of patent law, that such a view offends the rest of the world and places US patents above every other country’s patents and at center stage. It seems that you want to make the point that the US patent is not the be-all and end-all of patents.
You miss the point of what Ron is saying. Completely.
Ron is NOT saying that there should only be US patents and the rest of the world MUST change to suit our needs. Ron is saying that the rest of the wold has varied law and those variations are being glossed over by the co-called “world patent” proclamation from Mr. Gutierrez. Mr. Gutierrez boldly speaks of something that simply does not exist, nor will exist unless some extremely drastic changes happen across the entire world, and to jurisprudence that extends far deeper than patents. What Ron is saying is that at least in the US we have a unified structure of law that reaches across the fifty states in contrast to the EPO where the unification only extends to a portion of the patenting process and remains divided in the final grant and possible litigation stages.
You also make the point that “No need to give up US patent laws to harmonize and sooner this is understood the better.”, yet you offer no rationale for this position. You are clearly clueless. As I have mentioned before, THINK before you write. Please forgive me if this seems like a harsh attack, but add some structure of logical legal thought to your proclamations – otherwise they are useless, quite unfounded and only speak to your desire to be heard, rather than any desire to advance your position. They are simply noise.
New HereSeptember 12, 2009 09:47 pm
“For example, it is not rare to find that a patent found valid in a British court is found invalid in a German court. It is ironic that Americans are asked to align such aspects of U.S. patent law, which are fully harmonized across 50 states, with those which are harmonized across none.”
It would be ideal if the rest of everyone worldwide agreed along with 50 US states, but is a sorry picture to paint seeing 50 US states are only a spot on the map of the world!. The US in no special position to making the choice of US laws British courts – German courts to follow to fit US ideas of “harmonized”. This picture you give is the problem giving the world the idea we believe we are the center of it. Maybe others in the world would like to create innovation without US claims to it from poor quality US patents. No need to give up US patent laws to harmonize and sooner this is understood the better. No matter what market the US is to the world you can loose business having others go where they get respect and trust and not dictated to by one mindset. China is growing and look away if you want but China fast moving into a market place of it’s own in the world, just may have the US eat their patents if we are too big to see the big picture !.
Ron KatznelsonSeptember 12, 2009 07:47 pm
I have commented on this matter on the Microsoft blog but I doubt that its circulation is of any significance compared to the readership of your blog here.
What seems to be ignored by many of the good comments here is Mr. Gutierrez’s reasons for suggesting “harmonization”. After providing an account of the pendency and backlog difficulties that national patent offices face, Mr. Gutierrez jumps to unsupported conclusions. He states: “Global patent harmonization is not just wishful thinking about an ideal patent system. Rather, it is a necessity if national patent authorities are to overcome the substantial difficulties they face.” “A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods.” Mr. Gutierrez makes the assertions as if his mere proclamation makes it so.
He provides absolutely no explanation of the root cause for the backlogs or an explanation of how “harmonization” would address this root cause. Make no mistake: the big picture is clear as to the cause for the application backlog – and its not the lack of “harmonization.” It is the spectacular failure of SOME national patenting offices to grow their resources proportionately based on the economic factors that give rise to the growth of patent application filings. I have yet to see a single economic study by national patent authorities that attempts a substantive scientific method for projections of application intensity by examining the historical trends in product life-cycle shortening and the resultant exponential growth in the pace of new product introductions. The closely related trend of the exponential growth in knowledge and discoveries, as expressed in the number of technical and scientific journal publications, is similarly ignored by forecasters at patenting authorities. The annual number of scientific and technical publications doubles about every decade. It appears that these growth trends are well understood by many but not by patenting authorities. If one digs deeper into how they come up with their forecasts, one finds no sound basis for their assumptions, only rationalization as to how applicants “abuse” the system by filing “excessive” number of applications. To be sure, not all national offices suffer from this failed planning and examination resource allocation shortfall policies. For example, the Korean patent office has dramatically reduced its pendency by simply appropriating adequate resources without any “harmonization”. Suggesting that the backlog problem can be solved by “Harmonization” is at best misguided, or a disingenuous “red herring.”
Mr. Gutierrez suggests that “work-sharing” can help reduce backlog but implies that “work-sharing” can only be effective under “Harmonization”. Whatever little benefits provided, no one has explained how the impediments to work-sharing would be overcome by “Harmonization”. Upon real examination of the purported “work-sharing” benefits, it is clear that the most talked about “Harmonization” feature, the “First-To-File” system, may only provide one-sided benefits to foreign patent offices but not to the USPTO. This is because the prior art period covered by foreign searching authorities will not expand while that at the USPTO will expand by excluding the one-year grace period under Section 102. Moreover, there is already much one-way “work-sharing” going on now, where foreign patent offices benefit from USPTO searches of applications that are taken up later in foreign offices due to deferred examination practices. “Harmonization for the sake of “work-sharing” is clearly another “red herring.”
Mr. Gutierrez also makes the following sweeping proposal that is completely divorced from the different legal system we have in America for dealing with patents:
“In today’s world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body.”
Why does Mr. Gutierrez limit himself to patents in today’s world of global connectivity and business? Why not “harmonize” laws for other property rights, trade secrets, contracts, torts, etc.? Aren’t these important aspects of proper operation of global connectivity and business? Granting and adjudicating patent property rights in a single international legal system is as illusory as the prospect of the rest of the world accepting our legal system and jurisprudence. Alternatively, how many Americans would like to submit to legal philosophies embodied in foreign laws? Our laws and rules are admittedly more complex. However, would Americans cede to rules of evidence and civil procedures that are dominated by administrative convenience rather than judicial equity? It is a mere myth to assume that the patent “Harmonization” proposed by Mr. Gutierrez can be realistically limited to patents. Doing so means ignoring the inseparable workings of our patent law and the American legal system and his call is no less than a call for abolishing the American legal system in favor of some illusory global legal system.
Finally, Mr. Gutierrez and those advocating “harmonization” neglect to specify which state we ought to “harmonize” with. It is a mere myth to suggest that, outside the U.S., the legal patent systems are internationally harmonized. For example, European patent law, in and of itself, lacks harmony among contracting states. Almost all attributes of a European patent in a contracting state, i.e. ownership, validity, and infringement, are determined independently under distinct respective national laws. Under Article 138 of the European Patent Convention such determinations are remitted largely to different contracting state laws and the respective state courts. Yet, these matters are at the heart of the proposed subjects for “harmonization”. For example, it is not rare to find that a patent found valid in a British court is found invalid in a German court. It is ironic that Americans are asked to align such aspects of U.S. patent law, which are fully harmonized across 50 states, with those which are harmonized across none.
Gene QuinnSeptember 12, 2009 04:59 pm
If you have not heard compelling arguments then I would recommend you pay better attention. There is no hyperbole in saying that harmonization would cripple the US economy, and if you do not see that I have to wonder why. Everyone in the patent industry knows that outside the US the patent laws tilt heavily in favor of large, established corporations. Everyone also knows that large corporations lose the ability to innovate, and simply use their dominant power to maintain market position. It is also well known that the US economy is overwhelmingly built on small businesses and start-up companies that rely on technology. If you were to implement European patent laws in the US, which is what harmonization would be, then you handicap independent inventors, small businesses and start-up companies. There a reason why research and development happens in the US and to a much lesser degree elsewhere. So yes, the giving up of US patent laws for the sake of harmony and for the sake of making globalists feel better about being American is a mistake, unwise and would definitely harm the US economy.
Gena777September 12, 2009 04:30 pm
I am generally in favor of US sovereignty within American borders. However, I have not heard any compelling arguments supporting the hyperbolic assertion that harmonization would “cripple the US economy and lay waste to our way of life.” While change for the sake of change is not always wise, there are potential benefits here, if the results of negotiation incorporate adequate protections. Reciprocity could lead to improved efficiency and global relations. At the same time, it is imperative that individual inventors contact their leaders in government and take other steps to ensure that their rights are protected and their voices are heard.
General Patent offers patent enforcement solutions — GeneralPatent.com
Joff WildSeptember 12, 2009 02:30 am
Not so obvious – it’s a good question. I have three responses:
1. Although I have not looked at it too closely, my guess is that it is the Japanese and the Koreans who account for the majority of non-US USPTO grants.
2. The US is a vital market and so a US patent, whatever the quality, is vital if you wish to operate in the US. And with globalisation more foreign companies are operating in the US than ever before.
3. Most foreign applicant are larger corporations and have a good level of patent expertise. They know how the prosecution system works well – or they know US attorneys who do – and so are better placed than, say, many US SMEs and start-ups to get applications through the office.
Incidentally, now that the 50% mark has been crossed at the USPTO with regard to domestic/foreign grants, it would be a surprise if the situation was ever reversed on a permanent basis. At the moment, for example, applications from China are a relatively small part of what the USPTO handles. That is certainly going to change over the next five years. I woud argue that in future it will be difficult for any private practice patent attorney anywhere in the world to do his/her job effectively without access to substantial Chinese language and patent knowledge.
New HereSeptember 12, 2009 12:55 am
-Not so obvious
I only want to offer an answer and not for Joff:
Most of those foreigners that seek US patents are taking advantage of the USPTO and quality has little to nothing to do with it. When you as well anyone can be a target today the quality of a patent when fighting in US court(s), its not always a fair “quality” fight, so US patent(s) are tools and not anything of value beyond that. This fact is because the foreigners know how the game is to be played when it comes to patents in the US today, its having a patent mindset being the more US patents the better and quality is not top on the list because US patent owners care less about quality so it seems to the foreigners.
Not so obviousSeptember 11, 2009 02:11 pm
How, if at all, do the BIS requirements impact the thought of shipping off examination work to foreign countries?
You also indicate that it becomes a trivial extension of the system to allow regular U.S. patent applications to be examined in foreign patent offices. I don’t think this is accurate. It’s a huge step given the implications as to which laws govern examination. Changes to those laws might be tough to meld with the Constitution.
Your KSR threshold analysis is awesome, but I think it gets even more Kafkaesque, as there is one small, but critical distinction to be noted: the inventor is NOT a PHOSITA.
This does have important implications as the PHOSITA is omniscient as to ALL published items in the field and in any field where the problem may have related solutions (i.e. possibly every field) This practically guarentees a Kafkaesque finish if the KSR philosophy is fully applied.
This KSR philosophy deserves a critical look – There are several posts at Patently-O that ask whether the dicta of KSR is being misapplied. Remember, the Holding of KSR did not relate to a complete dismissal of the TSM test – there was a version of that test that came later than the fact pattern in KSR that remains intact. The scope of the Supreme’s holding in KSR only applies to the earlier strict TSM test. No more – no less.
A quick question for Joff,
You indicate that many Europeans would also reject mutual recognition of patents because they do not feel that those granted by the USPTO are of sufficient quality. This seems counter-intuitive given the statistics that more foreigners are obtaining US patents. How can these discrepant results be explained?
breadcrumbsSeptember 11, 2009 01:52 pm
The federalist paper #43 can be found in its entirety at: http://www.foundingfathers.info/federalistpapers/fed43.htm
The pertinent portion:
1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.
“The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
It’ all about GlobalismSeptember 11, 2009 01:29 pm
Dale – You make some excellent, well founded arguments. However, I think what you and everyone else are missing in this debate is that the larger powers that are pushing for a harmonized, global patent system don’t care about the US as a whole being strong or not. It’s not even really about software patents (this is just a red herring to get the tech community in favor of policies that destroy the US economy). In fact, this proposal just one plank of an overall push for Globalization by the World Government proponents/Globalists. The US economy, the US middle class, the US dollar as a world reserve currency, and concomitantly also the US patent system are being intentionally dismantled by the Globalists to bring in a World Government along with a World Economy controlled by a single World Currency. These things are planned and executed incrementally over decades, not within the miniscule time frames of political administrations. Proof? Read the 1966 Presidential Commission on the Patent System from the Johnson administration. You can also read highlights of this in the book Software Patents by Gregory A. Stobbs. In particular, notice point #27 of the 1966 Commission’s report: “Pursue international harmonization of patent practice, with ultimate goal of being the establishment of an international patent, respected throughout the word.” This plan was decided decades ago, and is just now being rolled out to be “debated” although there will be no real meaningful debate. How many of the other points of the Commission’s report were also eventually implemented, but only decades later? How about 18 month publication, published apps available as prior art, 20 year patent terms, and so on. The harmonization of the patent system is just another point in the Globalists’ plan, and it’s no coincidence that this proposal comes out at the same time as the US economy is tanking and the US dollar is about to be replaced with an international basket of currencies (Special Drawing Rights or SDRs) as the world’s reserve currency while other countries to get out of the dollar. It’s all releated and carefully orchestrated. So you can argue against these changes as being bad for the US economy which is absolutely true, but realize this in fact is the goal.
Noise above LawSeptember 11, 2009 11:03 am
The elephant in the room is the fact that, for the US at least, patents must be restricted/guided/controlled by US law.
Accomodations to non-US law should (rightfully) be guarded against and rejected.
The evaluation of patents will not overcome the fact that the very evaluation is done under differing concepts/rules/law. “Duplication” will be much harder to identify than one may think.
Joff WildSeptember 11, 2009 10:57 am
I am not sure that your description of the US under President Obama or any other recent leader agreeing to change its policies in order to get the Europeans onside is one that many people outside the US would recognise. In the end, the US will do what is good for the US – which is just as it should be and explains why a global patent system as described by Horacio Gutierrez is inconceivable.
Now that close to or even more than half of patents granted in the US each year are to foreign entities (just as most EPO patents are granted to non-European businesses), it may make sense to look at how duplicating work already done at, say, the EPO or the JPO can be avoided. There has been some slight progress on this, but nothing spectacular, and there is no indication that this situation is going to change any time soon. Quality and patentable subject matter are just two of the many huge obstacles in the way of change – although maybe the Supreme Court (not the US government or Congress) may make such discussions slightly easier in the future!
I don’t know enough about nuclear power in either France or the US to comment on that.
All the best,
Gene QuinnSeptember 11, 2009 10:19 am
Thanks for your comments. I wouldn’t be so quick to dismiss the global patent system. That is much more like what is in place for copyrights and many seem to be asking why not for patents as well.
I think you are right when you say that the Europeans have been more resistant. That is likely why whenever there are talks or discussions the European position is that the US needs to change. All too frequently those in the US simply say “OK.” With Obama et al in power, and their thirst to make America more like Europe, I fear that what is good in the US system will be lost in favor of becoming more like Europe just for the sake of becoming more like Europe. If I could advise the President I would say to him: “why don’t we start by trying to be more like France with respect to nuclear power.” It is exceptionally odd that he detests nuclear power in the US, wants us to become much more like France in terms of the government role in our lives, and says Iran has legitimate reasons to pursue a peaceful, energy producing nuclear program. Why then don’t we have the same legitimate reasons to pursue one in the US?
EGSeptember 11, 2009 08:07 am
Check out Adam Mossoff’s law review article entitled “WHO CARES WHAT THOMAS JEFFERSON
THOUGHT ABOUT PATENTS?” He refers to Madison’s comments in The Federalist No. 43. Mossoff’s articles discusses the “myth” aptly called the “Jeffersonian Story of Patent Law.” This “myth” unfortunately has become “dogma” because of a passage in Graham v. John Deere Co. which relies almost exclusively on this “myth” to support a “constitutional standard” for patentability.
Joff WildSeptember 11, 2009 06:49 am
Ironically, many in Europe would be opposed to a global patent system because they feel it would be much closer to the one in the United States than to those operating in Europe. I think they are wrong on that – current US patent reform proposals clearly bring the US much closer to Europe than it has been in the past.
Many Europeans would also reject mutual recognition of patents because they do not feel that those granted by the USPTO are of sufficient quality. The same may well apply to patents granted by countries such as India and China.
In fact, it is probably true to say that up to now the Europeans have been most resistant to the idea of more harmonisation – whether this be in Europe or more globally. Successive USPTO Directors and JPO Commissioners have spoken frequently about closer integration; the Europeans have consistently resisted. It could be that David Kappos’s speech after his inauguration – in which he spoke about staying in the US and finding US solutions to the USPTO’s problems – indicates he understands that international solutions are going to be very tricky, even though most major patent offices face similar problems: rising pendencies, increased backlogs; falling acceptance rates; and perceptions that quality has declined.
Horacio Gutierrez, a US citizen born in Venezuela who works for a US corporation and definitely not a European seeking to impose anything on anyone, is wise enough to know that there will never be a global patent system as this will mean countries ceding sovereignty in an area that is vital to their national interests – something that just is not going to happen. However, he surely does know that closer co-operation between offices to deal with issues of mutual interst is possible. That said, I suspect that in his heart of hearts he knows that is a long shot too.
New HereSeptember 10, 2009 11:00 pm
The link -Dale B. Halling- provided, reading it makes me really think about how much on the far side the US patent system + patent owners have gone. The USPTO broken out of control no clue to know where it or US patents will end. Its this lost-in-space approach people that is making others in the world re-think patents and mostly US patents, that they want more control because of !. If the PTO makes patents faster and cheap to obtain without attention to quality and the process as a whole, to be respected, harmonization is going to be a harder sell for the USPTO world wide in the near future. Fact is harmonization happens when all are respected, trusted, along with the trust that all are on and stay on the same page when it comes to these values. Where are the values of the US patent system ?, what trust can they claim that anyone is willing to say they have ?.
kkSeptember 10, 2009 09:57 pm
Do you happen to have a cite for that Jefferson – Madison debate about the patent system? Federalist Papers? I think it would be an interesting read in light of the present discussion. It might be that some of their arguments are appropriate to today’s situation. Thanks!
AdamSeptember 10, 2009 05:18 pm
I’d just like to point out that Dave’s point is why Gene’s parenting analogy isn’t valid. “Just because your friends do it” is in fact a valid reason, if what they’re doing is essential to your communication, trade, or cooperation. This is why it’s a good idea to speak English if your friends speak English, to keep your money in Dollars if you live in the US, and to have a CD-ROM drive in your computer if everyone else does, apart from the inherent superiority of any of those things. In the same way, if we other countries to work with us on patent rights, and for the process to be efficient, that desire alone might be worth working towards harmonization. It also might not be, I don’t have an opinion on the matter, but it’s not illogical.
OldTimerSeptember 10, 2009 04:15 pm
Kappos’ entire career was spent within the borg of IBM. Is there really any question where he will come out on this?
My prediction is that we will follow an incremental glide path toward a global patent system. The USPTO already has a program in place to subcontract searching for PCT applications to the South Korea Patent Office. Many clients use this service because it is significantly cheaper. It’s a pretty small step to offer a similar option to subcontract examination out to another patent office in exchange for a reduced fee. I suspect many clients will take advantage of this option too. To be perfectly honest, examination quality is now so bad at the USPTO that it’s not like examination at a foreign patent office could be a whole lot worse. Besides, most examiners are foreign nationals now anyway. What’s the difference if they are sitting in their home country of China, India, or Korea, or if they are sitting in D.C.? Once clients become comfortable with examination being conducted in a foreign patent office it becomes a trivial extension of the system to allow regular U.S. patent applications to be examined in foreign patent offices. It’s the slowly boiled frog scenario.
I’m not certain this will be all bad for U.S. inventors. After KSR the obviousness threshold is now lower in the USPTO than in the EPO, which is a 180 degree reversal from a few years ago. The EPO obviousness determination still requires that the prior art WOULD have led a PHOSITA to modify the teachings of the prior art to arrive at the claimed invention. The standard is WOULD, not COULD. This is the European analogue to the pre-KSR teaching/suggestion/motivation test in U.S. patent law.
By contrast, in the USPTO the standard post-KSR is whether a PHOSITA in possession of the prior art COULD have modified it to obtain the invention defined in the pending claims. The U.S. standard is now COULD, not WOULD. And since your inventor is a PHOSITA who DID, in fact, devise an invention which consists of the prior art plus his/her modifications, it is axiomatic that your inventor COULD have modified the prior art. It’s a bit Kafkaesque–by filing the patent application your inventor had demonstrated that the invention is obvious. At least in the predictable arts, under a proper application of the PTO’s examination guidelines after KSR every claim MUST, as a matter of simple logic, be obvious, provided the Examiner can find all the elements of the claim in any number of prior art references.
Gene QuinnSeptember 10, 2009 03:57 pm
Good point. I am not philosophically opposed to reciprocity or even a true worldwide patent system. History just demonstrates that the rest of the world is quite arrogant about their patent laws and demand that we do things their way, even when how they handle things makes absolutely no sense whatsoever. If a worldwide patent system means that we take the good from everywhere and get rid of the bad then count me in. I have a hard time believing that is what the harmonization crowd wants. The apologizing for being American and having our own laws and ideals has to stop somewhere, and making changes just to be more like Europeans doesn’t make sense to me.
Thanks for contributing.
Dale B. HallingSeptember 10, 2009 03:50 pm
Gene, you make a number of good points about Microsofts motives and I completely agree that hamonization efforts have all been to the disadvantage of the US. However reciprocity for patents might make sense. In other words, the U.S. recognizes patent issued by the Canadian patent office as valid. This idea was first proposed by the U.S. in the late 1800s according to B. Zorina Kahn’s book “The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920“. Copyrights were national, like patents today, in the 1800s and Mark Twain argued that this hurt American authors, since American publishers had an incentive to publish foreign works over books by American authors. The national patent system hurts start-up companies and the world economy by reducing their valuations, and encouraging foreign companies to copy innovation rather than innovate themselves. For more ways to provide real reform to the patent system see http://hallingblog.com/2009/05/29/real-patent-reform/
New HereSeptember 10, 2009 02:05 pm
A Global Patent System is the idea comming from those sick of US corps/companies with US patents holding them to the patents they have no control over. People no matter where they live do not want other people telling them what to do via patents, patents that have the habit of doing just that running the lives of people. Sounds crazy but true and is a growing problem for people all over the world as they will continue to want control on their own soil, these people to soon not recognize the US patent system that wants to call all the shots from home. The ideas of entrepreneurship, innovation are not only US born and the sooner the US respects this with a fair view of patents in the world, people of the rest of the world will have less respect for US patents in their part of the world. The idea we are a world above the rest is an outdated one of single minded ideas of entrepreneurship and innovation, the result is the drive for such ideas as A Global Patent System. Taking advantage of the larger entrepreneurship and innovation in the world would not take a global patent system if people could get past the old ideas that information must be owned and protected for their own gain. The US should be first on this front to respect other people in the world and see a larger world with patents that are not landmines that are not only under US control on other soil. The world is a big place and we need to find better ways to bring it together !. My opinion above is taken as if I were not from the US, I want the US greater then is already is.