For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 17 April 2013

Coming soon: speedypats?

Here's some good news for lovers of sheer speed.  Now that the European Union has shown that it has a fast track for coercing patent law reform and the courts of England and Wales have demonstrated a pacy new forum for IP litigation in the form of the revamped Patents County Court, it's the turn of the Intellectual Property Office (IPO) to offer superfast processing of patent applications.  As this morning's media release from the UK's Department for Business, Innovation & Skills states:
Plans to bring in a new ‘superfast’ patent processing service, which will be capable of granting patents in just 90 days, were confirmed by Intellectual Property Minister Lord Younger today.
The government has today published a consultation [which you can enjoy at your leisure via the IPO's accelerated patent page here] on how the service should work, following on from Business Secretary Vince Cable’s announcement last year that the service would be in place in 2013.

Currently it can take a number of years to gain patent protection. This length of time is usually suitable for most patent applicants as it gives applicants time to make important commercial decisions and change their strategy in light of any decisions. However the Intellectual Property Office (IPO) recognises that this timescale may not suit everyone’s needs [ie people who don't need to make important commercial decisions or change their strategy, Merpel surmises].


Intellectual Property Minister Lord Younger said:

“Inspiration and inventive thoughts can emerge at any time [the IPKat, who thought they only emerged between normal working hours, is grateful for this profound insight], but acting on them quickly can often be the catalyst for making a real difference to the success or otherwise of an idea. Government is committed to making it easy for innovators to turn their ideas into business growth. I am sure this will help to create a streamlined and flexible patent service and bring more choice for those who use it.”
The consultation will seek views on:
  • the principles on which such a service could be based [a tricky one, this. The government might favour those principles which most effective discriminate in favour of British SMEs, though that might be a problem to implement ...]
  • the conditions that would apply in order to use the superfast service [how about low-tech one-product patents with a single claim and no conceivable prior art within sniffing distance?]
  • the details of how such a service should work in practice, including fees [Merpel wonders: is this like paying extra for fast boarding on easyJet? And will fast-track patents mean slower boarding for the rest of us -- or are new examiners going to be trained and recruited]
  • the usefulness of existing patent acceleration services [another tricky one here. If the consultation shows that the existing scheme is not particularly useful, that data might indicate both that it should be (i) scrapped or (ii) improved and enhanced].
The IPO already offers free acceleration services which mean a patent can be granted in less than a year. Whilst granting a patent in less than a year is very quick by international patent processing standards, the IPO recognises that sometimes there are circumstances where the applicant would find it useful to obtain a grant even more quickly.

The consultation will run for 8 weeks and concludes on 12 June 2013.
The first patent application to be trialled under the new fast track will doubtless be applied for by Business Minister Vince Cable himself, says Merpel: it's for a new substance called Business Growth Hormone. Its claims are not insubstantial, though there may be problems with inutility.

The IPKat is more inclined to find virtue in the proposal, but still wonders about various things. Can we be satisfied that a 90-day patent will be as carefully examined, and as likely to be upheld? Even if the presumption of validity is just as strong for a speedypat, might not competitors feel more strongly tempted to challenge it?  And would this facility confer a particular advantage on so-called patent trolls, who would have the opportunity of charging rent at a far earlier time?

Fastest cat here -- not a good omen. It can rapidly get up to speed, but is soon out of puff

The good old days, when you could get a patent in just over six weeks,  here

4 comments:

Anonymous said...

Two words: The Patent Box.

Meldrew said...

Bloody stupid idea. I think that is plain enough.

This proposal guarantees the grant of invalid patents, particularly in fast moving fields where the normal 18 month publication shadow can hide lots of nasties.

Although such nasties might be capable of being addressed in post-grant amendment there could be messy procedural issues: particularly as the person who wants a superfast patent may be precipitated into superfast litigation.

Fast patents, like fast foods, may satisfy briefly: however in the long term neither are good for consumer health.

Anonymous said...

Superfast grant only seems interesting when your competitor already entered the market (yet *after* your filing) or you somehow found out he's about to do so.

However, isn't a *pending* application often at least as efficacious as a cause of headache to the patent attorney asked to give clearance for a product, at least if the manufacturer is your average NPE (non-pirate entity)?

Ron said...

I don't think there is anything fundamentally wrong with rapid grant. It may be recalled that the 1949 Patents Act, as granted, specified the same 18 month period for putting the application in order that had been a feature of the previous Patents Acts. Due to the huge backlog of applications that had built up during the war, legislation soon had to be passed to allow the period to be extended, and we seem to have got used to a relatively long grant procedure as a fact of life.

Germany has quietly provided a rapid grant procedure for its national patents for decades. I say "quietly" because when I was a student member of CIPA, the foreign law lectures only mentioned the deferred examination aspect of German patent law, and I don't recall having seen it mentioned in any text books either. Back in the 1970's when I used to write English-language patent abstracts for "Derwent", I estimate that about 4% of the documents were Patentschrifts that had been granted earlier than 18 months from the date of filing. The earliest I recall was granted 7months after filing. A German attorney once told me that there was no charge for this service: if you paid all the necessary fees on filing, and the search and examination revealed no objections, then grant could follow forthwith without waiting for a separate publication of the application as filed at 18 months. Such applications bear a footnote on the front page saying (in German of course) that the patent is identical with the application as filed.

When I was in industrial practice, the fact that competitors were kept in the dark about the details of their own new applications for at least 18 months was seen as a distinct advantage, just as the fact that they were kept in the dark about their competitors' inventions was a hindrance. Does the US still have the statutory bar that required an application to be filed in the US before a patent for the same invention was granted in another country?

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':