An article by Lee Hollaar, a Professor with the School of Computing at the University of Utah, Salt Lake City, appeared in this month’s IEEE (Institute of Electrical and Electronics Engineers) Spectrum magazine and complements an 11-page paper he wrote on patent reform last October.
Professor Hollaar, a former chair of IEEE-USA's Intellectual Property Committee, points to delays in granting patents, an overlong protection period and limited examination as issues facing the current system.
He suggests that adding another tier of patents into the existing system would address some of these problems.
He says his ‘limited patent’ would:
- Offer immediate protection for products available on the market – so there is no delay in obtaining protection;
- Only cover products that are available in the marketplace – preventing so-called patent-trolls from using the new intellectual property right;
- Last for four years – time enough to obtain a proper patent and build a market;
- Be based on novelty – which should be easier to prove than existing requirements based on non-obviousness;
- Not require examination – there would be no presumption of validity, and the novelty of the patent could be challenged by anyone paying the relevant fee and providing evidence of prior art (that the patented invention was already in the public domain);
- Reduce the time and cost of litigation – in any enforcement action, the case would be stayed until the patent office had examined the limited patent for novelty. The person accused of infringing the limited patent would be entitled to put forward prior art;
- Increase the databank of prior art available to patent examiners – improving the examination system for regular patents; and
- Cost less – allowing the price of regular patent applications to increase, and consequently increasing the amount of time that examiners can afford to spend in assessing each patent. This would also result in an increase in patent quality.
Critics are unconvinced, querying whether such a system, which relates largely to software patents, could also apply to other sectors.
John MacKenzie, a partner with Pinsent Masons who specialises in intellectual property disputes, said:
"These proposals are an interesting response to the difficulties posed by the current US patent system. However, they are not likely to reduce the fundamental challenges and cost of the patent system. A patent is a very powerful device to protect intellectual property. That being so it ought to be granted only when it is clear that it is merited. The current system is criticised mainly because US patents are not subjected to rigorous examination, which allowed unfounded claims to be made. These proposals do not address that central concern."