Improving Global Patents: Think Locally, Act Globally


Posted by Horacio Gutierrez
Corporate Vice President and Deputy General Counsel
 
United States Patent and Trademark OfficeIn early August, David Kappos was confirmed by the U.S. Senate as Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office.  We congratulate Dave on his new position and offer our full support in tackling the challenges ahead – not the least of which is to bring the patent system into the 21st Century.  As Dave knows well from his many years of experience in the U.S. and abroad, when faced with huge challenges, unique opportunities arise.  
 
Big challenges certainly confront the global patent system: Escalating patent application backlogs; lengthening pendency periods; increasing costs of patent prosecution; dubious patent quality due to the global explosion of prior art and the time allowed to examine applications; and examination inefficiency due to duplication of work by multiple offices.  
 
But these challenges also present unprecedented opportunity.  One of the biggest is the opportunity to advance patent harmonization. 
 
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. 
 
Over 3.5 million patent applications are pending around the world, including over 750,000 in the U.S.  Pendency periods are extending to three, four or in some case five years before final patents are issued.  The cost of this workload to patent applicants and patent offices is too high, and the delays in securing patents are too long for entrepreneurs and large enterprises alike. 
 
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. 
 
A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods.  
 
To increase efficiency and enhance patent quality, patent offices also need to leverage collaboration and work sharing opportunities.  As I blogged previously, national patent offices should be commended for their early efforts at work sharing through projects such as the Patent Prosecution Highway and the “IP5” partnership.  
 
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.
 
By facing the challenges, realizing a vision, overcoming political barriers, and removing procedural obstacles we can build a global patent system that will promote innovation, enrich public knowledge, encourage competition and drive economic growth and employment.  The time is now – the solutions are in reach.

 

Comments (42)

  1. Anonymous says:

    The most common way to implement your idea is to have reciprocity between countries.  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 hallingblog.com/…/real-patent-reform

  2. Anonymous says:

    Many of us do not want lessons from Microsoft on patents and international standards. We actually prefer to have impartial professionals present such lessons – people with demonstrated commitment to the worldwide community of developers and users.    Microsoft has worldwide influence via its monopoly position in many markets. However, its credibility is damaged by past and continuing abuses. The dispute with I4I is just one recent example.

  3. Anonymous says:

    Is this so that you can willfully infringe on patents globally, as you were convicted of doing in the i4i case?  Or were you hoping to have an injunction barring you from distributing software containing customXML in every country, not just the USA?    Yes, I know that you have an expedited appeal coming up.  I fully expect you to lose, though there's some possibility that you might get the injunction stayed while you appeal and reinstated immediately after.

  4. Anonymous says:

    The US patent system is a disaster. It causes a continuous slide in American competitiveness, and is approaching the level of a national crisis. People around the world are watching with astonishment as Americans bind themselves to this failed and destructive legal regime. Why would any other nation willfully replicate this disaster? Should they swallow this poison pill out of solidarity with the American plight?

  5. Anonymous says:

    The rest of the world reels in horror at the Kafkaesque nightmare that is your patent system – and is also pretty frankly sick of your ever-ongoing attempts to impose your national laws extra-territorially on the rest of the world.  What on earth could there possibly be in it for us?  The "opportunity" to get sued in backwoods East Texas courts by some obnoxious patent troll?    I think I speak for pretty much the rest of the world when I say "No thanks".  Only that's not quite how politely I would phrase it if I wasn't a guest on your blog.  

  6. Anonymous says:

    One way I think the proliferation of bad patents could be slowed would be legislation banning sale of patents unless the business the patent covers goes with it.  In other words if the business dies or drops the thing the patent covers, the patent dies with the invention and it goes into the public domain.. This would stop patent trolls from snapping up unused patents, then using them to sue everybody and his dog who does anything remotely resembling the claims of the patent for infringing it.

  7. Anonymous says:

    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

  8. Anonymous says:

    A global patent system, particularly for software, would literally outlaw Free, Open Source Software.  Microsoft Nirvana must be where everyone uses Microsoft software, development tools and patent encumbered standards.    Is that what you really want?

  9. Anonymous says:

    OMG,    You're patent system is utterly borked – please don't inflict it on the rest of the world.  

  10. Anonymous says:

    I’m going to post this in multiple parts:  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.  

  11. Anonymous says:

    He provides absolutely no explanation of the root cause for the backlogs or an explanation of how “harmonization” would address this root cause.  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 by examining the historical trends in product life-cycle contraction 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 technical and scientific journal publications, with numbers doubling about every decade is similarly ignored by forecasters at patenting authorities.  It appears that these growth trends are well understood by many economists 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”.  

  12. Anonymous says:

    I think most can agree with the potential of such a global system, but I fear it will remain a theoretical excercise.    The difficulty lies in agreeing on a common patent system. How will the world come to an agreement on what is patentable and what is not, patent expiration, the language to use for the patent application, and so on?    It also makes sense to first think about the required patent system reforms, since that would be interesting input for such a process.    Once the world reaches agreement on a common patent law/system, countries are theoretically able to simply recognize/adopt the patents that have been approved by other countries, which will indeed save a lot of work.  A common database of existing patents should also help to streamline the approval process.    By the way, as a reaction to some of the other comments: there's nothing in the blog that states the US patent system should be used as a basis for this global system. It actually states that the US system needs to be improved so there is some recognition of the problems of the current US patent system.

  13. Anonymous says:

    Please, note the author is a LAWYER, and lawyers are the only benefactors of this screwed up patent system. As a lawyer he is bound to promote tHIS STUPIDITY everywhere. For exponentially ever growing gains, forward!    I wish Microsoft all the worst in all future IP lawsuits.    — Marian Csontos

  14. Anonymous says:

    You want global patent system, and you patent everything even stuff you didn't invented, just to stop the competition.    Two words: No thanks.    Patenting crucial stuff, okay. But everything you can get your hands on? No.    If you make good products, everyone will buy them. You don't need to stop the competition on a legal and unethical way.    Note to Microsoft, buy more coders and less lawyers and lobbyists.

  15. Anonymous says:

    Worst idea ever, I hope it's only Your private idea.  Learn the lesson from "MS Word in USA".   When we finally stop patent the software?    br  SB

  16. Anonymous says:

    Worst idea ever.    Do you have any idea that patenting softwares only helps to increase "digital divide"?    Patenting doesn't protect ideas, protects only proprietorship.

  17. Anonymous says:

    Basically a GREAT IDEA!      Obviously it needs to respect the enforcement in each given country.  It must also provide a three tier fee structure for Large Entities (like Microsoft), Small Entities (like Redhat or other less then 500 person firms) and Individual (9 or fewer persons and less then 1million 2009 baseline valued euros/annum).      No maintenance fees for Individual entities until the issued patent is licensed by a large or small entity in which case all such fees are due and payable.  This means the maintenance fees are based on the licensee's status (large or small entity).    In the event that pre-issue or post issue challenges are supported by the World Patent Office (WPO) all challengers are required to provide equal representation to any Individual Entity challenged. That is if MS decided to challenge Individual entity Giggle it would be required to pay for a legal team for Giggle equal to the legal team it fielded.    The fees for Individual entities will be less then that in any present PCT country today and not more then 1000 euros in total to issuance regardless of office actions, appeals etc.    The WPO will include the major market countries of the world including USA, European Union, India, China, Brazil, Argentina, Canada, Australia, South Africa, Egypt.    

  18. Anonymous says:

    Software patents are the software project equivalent of land mines: each design decision carries a risk of stepping on a patent, which can destroy your project.

  19. Anonymous says:

    If you realllly want to know about the damage our patent system has created, check  out anything about  Nick Tesla circa early 1900s.  The amount of his valuable technology lost to our use is tragic and mind boggling.  But that case doesn't stand alone.  It is reasonable for inventors to expect reward for their genius but unreasonable for entrepreneurs to use them and the legal system to manipulate their own selfish ends to the detriment of society.

  20. Anonymous says:

    Mr. Gutierrez makes a sweeping proposal that is completely divorced from the radically different legal system we have in America:     “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 they all 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, how many Americans would 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 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, those who advocate “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”.  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.  

  21. Anonymous says:

    Yay ! Sure !! Let's do this and maybe companies like i4i will sue your asses globally !

  22. Anonymous says:

    What about the cost implications to small business owners? At present, they can keep their costs down by applying for a patent in their own country only.      If the product is successful they can then apply for international patents.  Should the product not be successful they can cut their losses by not applying for protection in any other country.    If there was a global patent, would small business owners have to apply for it in year one?  Would the cost for a global patent be substantially larger than for a single country application, at present?

  23. Anonymous says:

    No question about the need for a global patent system if the monopoly's want to continue with the status quo.  Patents do nothing but stifle innovation. And intellectual property 'rights' go further. If you even consider thinking about improving something patented you'll have to deal with a drove of lawyers before being able to succeed in moving forward with the innovation.  So, as long as big corporations can ensure windfall profits we'll have to deal with all sorts of proposed patent system improvements.

  24. Anonymous says:

    To patent or not to patent is a discussion.  But the current process can be done faster and more transparent. Harness the power of the crowd. That is called Social Software, something Microsoft is not delivering in their software 😀 . But the USPTO has the website where anybody can deliver prior art: http://www.peertopatent.org  Would be nice that the materials delivered here can also be used by the EU. The patent (EU or US) examiner remains the person that decides to hand out the patent or not!    To conclude:   So the current process should be faster, as product cycles come and go faster.  The current process should be more transparent (e.g. no patent on Y-axis).  Share information between the patent offices of US, EU, Asia.etc (not to reinvent wheel)

  25. Anonymous says:

    Down with all patents. Patents are responsible for hunger in the 3rd World, exploitation and pollution!

  26. Anonymous says:

    Mr. Gutierrez,  Unfortunately, I must wish you ill with your plans for "global patent harmonisation". Your idea is utter folly.  Overseas, we're working hard in our own jurisdiction (NZ) to avoid sliding into the abyss that is the US Patent System.     For software, we've already convinced our government that patents provide *no* incentives for innovation. They're an inhibitor of innovation… as Microsoft have found to their major chagrin a few weeks ago in Texas.     I think containment of US patent idiocy is the best policy – what do my many non-American software developing colleagues think of that?    Dave

  27. Anonymous says:

    It's called ACTA, people and they're working hard to bring it on. Not Microsoft, but the Governments – see en.wikipedia.org/…/Anti-Counterfeiting_Trade_Agreement for details.

  28. Anonymous says:

    The biggest bull%%%% I've ever heard. Economic growth? Innovation and patents? Where did you learn all that stuff?

    Oh, and by the way. Let's conduct an experiment. Replace all your linux boxes at Microsoft with that crap you produce and let's see the real quality in action. Deal?

  29. Anonymous says:

    Right a new patent system that is not based on the US-one. A global patent system where  all the existing patent reviewed globally so  it is actually possibly that people in USA can lose already granted patent rights just because someone invented them first in the Soviet Union 30 years ago which was never taken consideration US before. A patent system where individuals has the same rights as companies, and where trials can not last that long so an individual cant  keep up with company lawyers.    Patent system is a joke all the patents should be freed up after 10 years max.

  30. Anonymous says:

    A newer idea from Microsoft, from America… Great, but no thank you.    I hope you cannot disease the European system ever.

  31. Anonymous says:

    Before patent system was created, inventors invested in finding out new things, and everyone was allowed to gain equal profit from that. Patent system was created to make inventors the original investment return.    Therefore patent system shall guarantee that the original investment can return with reasonable profit. Reasonable profit is not extra profit.    To avoid 'patent hell', where you afraid of finding out anything, because someone may have already done the same and therefore has right to suit you, patents must have very limited validity (e.g. 5 years, in chemical industry maybe 10 or 15). And an absolutely free and easily accessible database.    In my calculations to come up with idea behind the patented investments on FAT file system took about 5 man day at Microsoft. With reasonable profit MS shall return that investment within 5 years. So MS should get about 5000 US dollars before the invention goes public domain. Instead of hundreds of millions of dollars, what MS terrorizes from flash drive manufacturers.

  32. Anonymous says:

    Global patent harmonization?  Sure! Stop Software Patents (even in the USA) then the problem is over.

  33. Anonymous says:

    The need for a global patent system with the proper control mechanisms in place is as obvious as the need for the Commerce Department to create a unifed set of trade regulations within the 50 states. But now instead of dealing with these types of issues within one border, we now need to address them globally. For more on the potential merits of a global patent system, check out http://tinyurl.com/meyhls  

  34. Anonymous says:

    The US patent system is a disaster.

  35. Anonymous says:

    I think what everyone is missing in this debate is that those who 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 is 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 desperately try to get out of the dollar.  It’s all releated and carefully orchestrated. So everyone can argue against a harmonized, international patent system as being bad for the US economy which is absolutely true, but realize this in fact is the goal.

  36. Anonymous says:

    Who are all these uneducated people who only have negative things to say about the US and Microsoft?

  37. Anonymous says:

    I'll support Microsoft's idea, if and only if Microsoft agrees that global patent infringement lawsuits can be heard in any court on the globe. I'd like to see the punitive damages a European court would impose every time Microsoft infringes somebody else's patent. It would make MS wish they were back in East Texas.

  38. Anonymous says:

    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.”

  39. Anonymous says:

    Another "company" doing this is called RegTool, and I unwittingly subscribed to one of their services. I have paid for it and do not care about the money ($36.95) but I cannot get them out of my computer.

  40. Anonymous says:

    And in Canada, google respects all kind of limits that protect Canadian business interests. I can't watch Hulu. Not because we consider is politically subversive, but because it cuts into the profits of Canadian cable businesses. But you don't hear google making a big deal about that.

  41. Anonymous says:

    Any good advanced have been copyrighted so extremely it is seriously difficult for new inventors to innovate it.

  42. Anonymous says:

    Hello friends! I'll support Microsoft's idea, if and only if Microsoft agrees that global patent infringement lawsuits can be heard in any court on the globe. I'd like to see the punitive damages a European court would impose every time Microsoft infringes somebody else's patent. It would make MS wish they were back in East Texas.