The UK Patent Office has launched a public consultation to examine how well the current patent system works and whether too many trivial patents are being granted.
One of the main criteria of patentability under UK patent law is that 'inventions' must "not be obvious to someone with a good knowledge and experience of the subject", according to the UKPO. But now it wants to find out whether this requirement meets the needs of inventors, the public at large and the UK economy and launched a consultation on Friday.
"Are too many 'trivial patents' being granted? Or are innovation and competitiveness best served by easy patenting with low hurdles?" asks the UKPO.
Ron Marchant, the chief executive of the UKPO, said it is important to strike the right balance with the criterion of inventiveness.
"An inventive step requirement which is too difficult for applicants to achieve could result in inventions that might deserve a patent not receiving protection, thus hindering the applicant in research and investment. Alternatively, the danger of an inventive step which is too easy to meet is that patents could be obtained for small changes or improvements which hampers the legitimate activities of third parties. It is important that they help us to find the best solution," he said in a statement.
Over the last few years there has been increasing criticism of patent offices around the world for granting trivial patents. Last year, a study found that a quarter of US patent holders thought the quality of patents was "somewhat worse" than three years ago, with the quality of patents granted in the technology industry thought to be worse than in any other major sector. The FFII, an intellectual property campaign group, provides information on a number of European Patent Office software patents that it considers trivial, including a patent for a progress bar and a menu tab.
In an interview last year, a software manager at a small technology company, told ZDNet UK that large companies tend to swamp patent offices with well-worded patent applications for trivial technologies in the knowledge that a certain proportion of them will be passed.
Responses to the public consultation should be returned to the Patent Office by 31 May, 2006.
Talkback
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Why are you hiding content underneath some useless ad?
The whole of this site is now spam. Well done!
I can't speak for FFII, but I've talked to them enough to know that the list of patents in the FFII website is not there because they are trivial, but because they are software patents, or patents in non patentable fields.
I don't have a problem with anyone trying to solve the triviality problem (if they can), but this is by far not the only problem. In fields like software, even very bright ideas should not be patented, simply because that hinders its use, avoids further innovation and is not needed for this brilliant ideas to appear and be put to use. Software innovation does not require building prototypes in laboratories, or expensive experiments, it requires intelelctual work, and the result of this work is covered by copyright. Patents cover ideas which are too cheap to be covered in software (because computers follow exact formal models of behaviour, unlike the physical world).
The previous comment hits the nail on the head exactly. Surely we need to consider what patents and copyright are actually for? If someone patents the obviously best way of doing something, and then charges a large sum to licence that 'best way', the majority of products will use the non-patented 'second best way' and everyone ends up using something which is not the best possible.
Clearly if the 'best way' was very difficult or costly to determine, it's cheaper for others to make use of the research carried out by the inventor, and in this case protection of their IP is sensible.
If on the other hand, the 'best way' is cheap or simple to invent, which is the case with most software concepts (note 'concepts' not products - a product does take a long time and hence is expensive to develop, but most of the work is not innovative), the effect of the patent is to prevent others from using a solution they could come up with themselves.
What is expensive with software is the whole development process, and this is what generates the revenue - look at some of the best revenue generating products in the industry (eg large office productivity suites). Most of the cost of producing these is not person-years of research on a new concept in user interfaces, but person-years of writing source code, help files, UI graphics, testing etc. In this case, what you need to protect is the end-product of that expensive but substantially non-innovative process, the end-result of which is a set of files of code, graphics, text etc - exactly what copyright covers.
Compare software and pharmaceuticals - the software development is equivalent to the research into a new drug. In both cases, standard techniques are used, but in different combinations to produce an end-result which nobody has produced before. With a drug you might use different raw materials, temperatures, production processes, in different orders - with software you might use different routines from a standard software library and different tools. In both cases, you produce an end result which is much cheaper to copy than to invent from scratch. IP protection should be designed to prevent others from taking that end-result and simply copying it, bypassing the development process. For drugs, this is achieved by patents (I suspect you cannot copyright a molecule - it has been discovered not invented, so another one the same is indistinguishable). For software this is achieved by copyright - a free system which ensures others cannot take the end product of a developer's work and copy it to make money.
You only actually need patents where copyright cannot help because similarity between 2 items does not imply copying. 2 drugs may be the same molecule, but this doesn't prove whether one producer copied the other's research or not. The patent is needed to provide a legal basis to protect the originator's research investment.
If 2 pieces of software are identical, byte for byte, then the second must almost certainly have been copied from the first. There is so much flexibility in software design that for 2 people independently to come up with identical files is almost inconceivable. In this case you don't need the patent, as copyright protects the originator. In fact it does a better job than patents - if the 2nd developer creates their software independently, it may do the same job but you can tell they developed it independently because the files are not the same. This allows competition - for example, Firefox/internet explorer/opera etc - they all do the same job, but independently developed, and you can tell this by comparing the files. Patents don't provide this fine level of distinction.
Where you might need patents is for a way of doing something in software which is very difficult to discover, but once dicovered, easy to reproduce in different, apparently independently created, forms. An example is a compression algorithm or asymmetric encryption - it takes months
Continued from previous comment (why isn't the length limit applied when you click submit?)
Where you might need patents is for a way of doing something in software which is very difficult to discover, but once dicovered, easy to reproduce in different, apparently independently created, forms. An example is a compression algorithm or asymmetric encryption - it takes months or years to discover how to do it, but once you know the technique, you can produce apparently different versions of it in a matter of hours. This is where copyright falls down, and patenting is required.
The problem is how to distinguish a trivial patent covering development which was cheap, from a non-trivial one, and where do you draw the line.
Would you grant a patent for a newly discovered hangover prevention, made from collecting the drops which form on sheets of metal left out overnight, to be taken along with your beer. Of course not - no matter how you dress it up, this is just saying drink water with your beer. Clearly trivial.
Likewise a new way of compressing data which cost many millions to develop would be patentable.
Perhaps a sliding scale is best - you submit evidence of your development costs with the patent application, and anything below a threshold cannot be patented at all. If it's above the threshold, you are required to make your patent available to anyone, to be licenced at a fee based on a percentage of the development cost. Anyone who can provide evidence of independent research coming to the same idea can use it for free. If enough people develop it independently, the patent is cancelled.
Now can you patent ideas for patenting laws...