World patents too

A colleague recently floated a discussion about a world patent system. The basic idea is that, instead of patenting in every individual country, a single world patent would cover all member countries.

The motivation is to reduce the cost and complexity of getting a patent, and more importantly, to introduce some simplified and less complex system of enforcing patent rights. Enforcement is currently done on a country by country basis.

Given that the most likely defense in any patent dispute is an attempted patent invalidation by the defendant, my view is that we should give up examining patents altogether, in all countries. If the granted claims that get through the patent offices are going to get challenged in court, then why bother granting them in the first place? Also there’s simply too much prior art out there to examine any other than the commercially important patents; examining unimportant patents just adds costs to the system. Which is why it is done so badly I guess – it would cost too much to do it properly for all patent applications.

We could, for example, set up a world patent that acts like the innovation patent system in Australia – you write a patent application (the patent ‘option’) and then automatically receive an option to enforce your invention at any time in the future for the life of the patent, subject to a few simple administrative rules being satisfied.

Any such enforcement would be by ‘examination’ in the court with prior art courtesy of the defendant, or anyone else that wishes to supply the same.

So, firstly, if you ever feel compelled to enforce your implied patent right, your option, the first act would be to use speciality consultants to stress test your implied patent with prior art. The art and science of this would be systems to find prior art from within and without the patent systems. Consultants that do this already exist in the US and they already find prior art that patent examiners never would.

The problem remains of the multiple jurisdictions. However me-thinks that once you had stress tested your patent and enforced it in one, two or three jurisdictions that any defendant would just roll over at that point rather than spend money trying to invalidate your patent in another jurisdiction.

This would be a much cheaper system in some ways. It would cover the whole world with a relatively low cost entry fee. Higher costs would only be incurred when a party started privately stress testing the patent ahead of litigation.

Litigation is and would remain expensive – and this usually favours the wealthy corporations ahead of smaller companies and individuals. One way to address this to allow for contingency lawyers and non-practicing entities to enforce patents, and also to encourage large damages for parties willfully infringing. I personally favour damages that scale with the financial means – just like speeding fines in Sweden that scale with income.

I would also introduce a ‘reverse’ enforcement – a party could take a party to court if they believed that their patent option is invalid, and then provide the prior art evidence to get the patent option cancelled. This would give an operating party a means to create a clear space in which to operate without the risk of potentially infringing a patent right. Business does need certainty to invest, and this is the promoted purpose of the patent system which seems to have been lost of late.

Re-reading this blog entry, it is clear that each country would have to introduce a special patent court to handle all this. I would propose that this court steers away from the adversarial model of the English and towards the more intelligent magistrate system of the French. The purpose of any court proceeding in this model is to create a focused period of time, the proceeding, wherein a definitive answer to the validity of the patent claims is adjudged, once and for all.