Download Is the Patent System Under Attack?

“The Future of IP Series”
Intellectual Property
Institute
October 29, 2009
1/
IPI Seminar/
October 29, 2009
Is the Patent System Under
Attack?
Pressures on the Patent System
 Backlogs at the Major Offices
 Public Outcry of Poor Quality Patents
 Competing Systems for Driving Innovation
 Backlash Against the IP System
 Developing Economies
 Global Challenges, e.g., Health, Climate
Change. . .
2/
IPI Seminar/
October 29, 2009
Challenges at the EPO & USPTO
 Increasing Backlog. . . Can they get ahead of
it?
 This is a Global Problem (not just EPO &
USPTO)
-
Can’t necessarily hire their way out of it
-
Filings may decrease, but not permanently
-
Decreasing allowance rates compound the problem
 Possible Solutions
-
Increase the fees?
-
Deferred examination?
-
Full Faith & -Credit
Restrict continuations?
Work-Shifting to
Users? Must be our Ultimate Goal
3/
IPI Seminar/
October 29, 2009
Challenges at the EPO & USPTO
Public Cry of Poor Quality Patents
 Perception vs. reality. . . What is the REAL issue?
 We can do more to help the patent offices
1. Higher quality appls (self-regulate or be regulated)
2. Disclosing the best prior art is a must, but. . .
Inequitable Conduct is still a barrier
3. More data & digitization can drive greater efficiency
4. More collaboration with the Offices (e.g., peer-topatent)
5. Full faith & credit must be our ultimate goal
There Aren’t Any Problems
We Can’t Fix Together
4/
IPI Seminar/
October 29, 2009
Competing Systems to IP
Open Innovation. . . Connect & Develop
 Other systems provide new options
 Different solutions for different industries & situations
 Why can’t they co-exist with a robust IP system?
-
Patent quality, patent trolls, damages, etc.?
-
Systemic IP issues are being addressed via. . .
o The Courts, and
o Patent Law Reform
 The IP system is evolving & adapting as needed
The IP System is Still
The Best Driver of Innovation
5/
IPI Seminar/
October 29, 2009
Reactions to IP “Quality” Scare
 Raising the Bar on Obviousness. . . KSR
 Challenging Patents in Court. . . Medimmune, Sandisk
 Patentable Subject Matter
• In re Nuijten
• In re Bilski
• In re Comiskey
• Metabolite
–
Electrical signals deemed not patentable
Managing weather risk in commodity trading
Mandatory arbitration of legal documents
Method for identifying a vitamin deficiency
 US Patent Reform
1. Damages
5. Post Grant Review
2. Inequitable Conduct 6. Applicant Quality Submission
3. Interlocutory Appeals 7. First-to File
4. Venue
8. Misc. (Best Mode, Fee Diversion,
etc.)
6/
IPI Seminar/
October 29, 2009
Is the Patent System Under
Attack?
What Does the Evidence Say?
 Courts & Congress are raising the bar
 IP Rights are being questioned as never before
 Anti-IP activists are more active than ever
-
Amount of anti-IP blogs has risen dramatically
-
Anti-IP community has engaged the media
-
Anti-IP activists are attacking new areas
 Developing countries industrial policy can make excellent
use of the anti-IP agenda and rhetoric
We Can Not Afford to Take
The Patent System for Granted
7/
IPI Seminar/
October 29, 2009
The Anti-IP Activists Are Going Green
The anti-IP activists see green technology as a new
opportunity to exploit their Anti-IP Playbook; namely.
.
1.
2.
3.
Position “the
problem” in the
context of a
global Challenge
Point to
Intellectual
Property as a
“Barrier”
Demand free
access to IP
AIDS, famine,
climate change, etc.
Drugs, seeds,
fuel cells
Make good on human
rights commitments
8/
IPI Seminar/
October 29, 2009
UNFCCC Agreement & Challenge
The Agreement
Parties “shall take all practical steps to promote, facilitate and finance, as
appropriate, the transfer of, or access to, environmentally sound technologies
and know-how to other Parties, particularly developing country Parties…the
developed country Parties shall support the development and enhancement of
endogenous capacities and technologies of developing country Parties…”
The Challenge
 Developing countries seek to compel non-commercial transfer of clean
tech. in return for their post-Kyoto commitments (Copenhagen, 2009)
 Experts estimate $’s trillions investment needed to achieve low carbon
future – this requires significant innovation driven by both private & Gov.
investment
 A post-Kyoto framework must involve commitments from all countries
without shutting down innovation and growth
9/
IPI Seminar/
October 29, 2009
G77 Green Tech Transfer Proposal
The G77 developing countries are aggressively fighting
for compulsory licensing of green technologies in
exchange for climate change commitments.
Ownership
Technology Transfer Mechanism
(Gov’t +
Private)
“available on an affordable basis
including…compulsory licensing of
patented technologies”
“transfer government proportion on a
reduced or no-cost basis”
Gov’t Owned
“transfer at reduced or no-cost basis”
Privately
Owned
From G-77 and China Proposal
10 /
IPI Seminar/
October 29, 2009
What is the Role of Innovation
Do We Need More Clean Innovation?
One study finds that if we were limited to technologies available in
2005, the present value cost of achieving stabilization at 550 ppm
CO2 would be over $20 trillion greater than with expected
developments in energy efficiency, hydrogen energy technologies,
advanced bio-energy, and wind and solar technologies (Edmonds
2007).
Other studies have found that accelerated technology development
offers the potential to dramatically reduce the costs of
stabilization, with advanced technology scenarios reducing the
cumulative costs of stabilization by 50% or more, yielding economic
benefits of hundreds of billions to trillions of dollars globally.
Innovation is a Critical
To Curing Climate Change
11 /
IPI Seminar/
October 29, 2009
Estimated 100-Year Potential
Cost Reductions
Comparative analysis of estimated cumulative costs over the 21st century of
GHG mitigation, with and without advanced technology, across a range of
hypothesized GHG emissions constraints.
12 /
IPI Seminar/
October 29, 2009
What Can We Do About it
Recognize the threat is real & growing
RECOGNIZE
THE THREAT
• The Anti-IP community has mobilized
• Developing countries have joined forces with them
• The desire to “get a deal” on climate change could
trump the need to preserve strong IP protection
ACKNOWLED
GE THE
IMPACT
The potential impact from compulsory
licensing of green technology will be
sweeping & broad based
MOBILIZE
AGAINST THE
ANTI-IP
Amplify our voice by building a
strong, cross-industry coalition (ACTI &
IDEA)
to deliver OUR message
• Proving Strong IPR = R&D Investment = Innovation
13 /
IPI Seminar/
• Innovation = Cost effective solutions & Tech October
29, 2009
Diffusion
US Legislative Activity
IP Amendment in Foreign Affairs Bill
“To protect American jobs, spur economic growth and promote a “Green
Economy,” it shall be the policy of the United States that, with respect to the
United Nations Framework Convention on Climate Change, the President,
the Secretary of State and the Permanent Representative of the United
States to the United Nations shall prevent any weakening of, and ensure
robust compliance with and enforcement of existing international legal
requirements as of the date of enactment of this Act for the protection
of intellectual property rights related to environmental technology,
including wind, solar, biomass, geothermal, hydro, landfill gas, natural gas,
marine, trash combustion, fuel cell, hydrogen, micro-turbine, nuclear, clean
coal, electric battery, alternative fuel, alternative refueling infrastructure,
advanced vehicle, electric grid, or energy efficiency-related technologies.”
Larsen/Kirk Amendment
Passed 432-0!!
14 /
IPI Seminar/
October 29, 2009
How is GE Reacting?
1. We agree with a high standard of patentability
2. GE’s focus was already on Quality!!
3. High quality IP is in ALL our best interest
4. Filings may actually go down as a result
5. Re-examinations are on the rise
6. GE is seeking to collaborate with Patent Offices
7. Willingness to fight has gone way up
8. GE is DEFENDING the IP system globally
9. If WE don’t support the system, WHO WILL?
15 /
IPI Seminar/
October 29, 2009