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G8 leaders support a quality patent system

07 June 2011

Last week in Deauville (France), the G8 held its 37th summit. For the last five years, its general statement has always included a reference to IP issues. Initially, the focus was on the fight against piracy and counterfeiting, but it has now moved on to more specific and technical issues. In 2011, the G8 leaders stated: “Renewing our support for the principles of the patent system, we attach great importance to its promotion and development. We encourage increased international action to strengthen patent quality, and call for improved diffusion of patent information, particularly critical for SMEs and research centres. We support transparency in technology markets and call for the improvement of market places for trading rights.”
The fact that patent quality and the dissemination of patent information have been specifically addressed at this level is a strong signal in favour of a balanced patent system worldwide – something I fully support. In my opinion, the G8’s call for a patent system of high quality – in terms of not only the legal frameworks but also offices’ processes and users’ practices – can certainly be endorsed by industrialised and emerging economies alike. Improved dissemination of patent information, and efforts to ensure the widest possible diffusion of technological knowledge, will play an increasingly important role in sensitive discussions such as those on climate change and access to medicines.

The EPO with its technical expertise is firmly committed to working towards those ends. In this regard, the latest annual IAM Thomson Reuters benchmarking survey, which shows that the EPO is perceived by both private and in-house practitioners as having the highest patent quality among the world’s leading IP offices, is great encouragement to continue our efforts.

Benoît Battistelli
President

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Categories: International co-operation

One comment on G8 leaders support a quality patent system

  1. Tiit Tiimann (Mr) says:

    About patent quality

    In all probability no one responsible for development of patent systems has not seriously answered to the following question yet: is it logical and legitimate to name as the title of the invention, for instance ‘Fuel Injector’, if there is to do with the improvement of the prior art device, which likely holds also a range of prior patented and/or lapsed inventions? Absolutely unintelligible, but according to established legal thought of patent protection the answer to this question has been and would be by default – ‘yes’, despite that, for instance, by Canadian Intellectual Property Office’s “A Guide of Patents” fast fact – 90 percent of patents are for improvements to existing patented inventions or according to 35 U.S.C. 101 Inventions patentable: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title”. Moreover, in modern patent parlance ‘the claim’, ‘the invention’ and ‘the patent’ turn out to be essentially synonymous. All it indicates to the serious chaos in harnessing the mentioned terms in the patenting process of inventions pursuant to the existing patent laws and international treaties.

    Above saying gives justification to start the following question and to answer at the same time to it: why is uniform and real (but to this day principally missing) legal definition of the patentable invention unavoidable and needful for all patents system worldwide? A patent gives to its owner the exclusive right to make, use, sell, assign and license the invention. At the same time others have right to initiate legal proceedings for cancellation this patent. In both the cases, in using the patented invention as well in nullification of the patent, the decision about validity of complaint makes a patent court. It is not difficult to infer that inadequate legislation (especially without definition of the object of right /legal object/ and derived from it chaos in harnessing the essential terms) gives “nourishment” above all to mills of patent courts, visiting of which is time-consuming, result is unanticipated and the procedure itself very costly.

    Therefore in order to increase in patenting mutual confidence for all persons concerned there it is relevant and indispensable to know adequately what is really patentable invention, its legal definition and specifically derived directly from it the extent of protection by the object of right/legal object. As the patenting of inventions has progressively international dimension, then uniform and in every way real legal definition of the invention (formulation of it is to the utmost logical and accurate) is all in all high-priority and sole possibility for harmonizing different patent system and updating international treaties.

    Wherefrom to start in? Practically I presuppose that first of all we should change the legal thought of patent protection, i.e. to replace the established (having existed for a long time, and therefore recognized as good or successful) legal thought, i.e. the substantive importance in patenting has been mainly given to the “cult of claims” (the legal descriptions of the ‘metes and bounds’ of a patent’s exclusionary reach), with the real world (the practical world as opposed to the academic /strictly theoretical/ world) legal thought, i.e. inventors provide utility because they solve problems, in the course of which they create progressive, and why not quite often also fundamental, ideas into treasure house of worldwide knowledge. In other words and more exactly we must in first priority apply with the face to the conception of inventor, as already in the old days was guided -“[a]n inventor, in the meaning of the Constitution (USA –T.T.), is one who has himself conceived the fundamental idea of the invention, and has embodied it in tangible materials. To him and to him only can a patent lawfully be granted.” /William C. Robinson, I The Law of Patents 91 (1890)”. In truth and in the correct view the subject matter invented by the inventor exists before a patent is ever filed and before any claims have been written. Also WIPO holds that “Intellectual property relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. (http://www.wipo.int/export/sites/www/freepublications/en/intproperty/895/wipo_pub_895.pdf)”.

    Considering the aforesaid I hold that there it is the last time to start to change the established legal thought of patent protection to the real world (the practical world as opposed to the academic /strictly theoretical/ world) one, i.e. to take as the basis for defining the patentable invention and derived from it the scope of protection the conception of inventor – the novel intelligibly expressed in words inventive idea inferred from solution of the concrete technical problem. Claims should be exist as the “proxy” for the patentable invention describing shortly the process of solving the technical problem concerned by use of the systems framework together with system thinking model for the successive phases of this process: existing prior art, problem-task, inventive idea and embodiment(s) of this idea. Thus the patentable invention finds expression in the novel and progressive, if not, fundamental idea as the fact, whose truth can be proved in the course of the solution process of the concrete technical problem as the system.

    Tiit Tiimann

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