Nations Still Divided on Internet Patent Treaty
GENEVA -- Strong Internet patent quality was urged by experts and lobbyists at an Open Forum on the Substantive Patent Law Treaty (SPLT) at the World Intellectual Property Organization (WIPO) here last week. The SPLT was intended to become a Treaty to harmonize patent law on a global scale by the U.S., EU and Japan, but resulted in heated discussions about patent standards and subjects for patentabilty, including the much-discussed software patents. Some developing countries outrightly rejected the need for harmonization, claiming there are flaws in the existing systems, especially the U.S. patent system.
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“What we need to be doing is to focus on quality,” said Jonathan Zuck, pres. of the Assn. of Competitive Technologies (ACT). He acknowledged the patent system in the U.S. was broken to a certain extent and was struggling through a backlog of exploded patent applications from the dotcom era. There had been been patents on Internet shopping cards, for example, which he called “silly patents.”
Instead of excluding the much debated software patents from patentability, Zuck recommended protecting “true invention… Lets raise the bar.” Fewer and stronger patents would help smaller businesses, Zuck said, and be an incentive for innovation.
European critics weren’t convinced. “The negative effects of patents are obvious,” said Rishab Aier Ghosh, Senior Researcher at the UN University-Merit in Amsterdam: “It is the monopoly that is granted to the patent holder for some time. The positive effects are not proven so far.” Ghosh is working on a 3-year project studying the economic effects of software patents in the EU. Despite the failure of the EU Directive on Computer-Implemented Software that rejected software patenting in principle, a considerable number of patents have been granted by the European Patent Office, mainly, according to Gosh, to U.S. and Japanese companies.
First statistical results of the study showed a considerable concentration. “The top ten patentees hold 57 percent of the patents,” according to Gosh. Disclosure of information, which is seen as one major benefit of the patent system to society, was shown to be not really spurred. For many software companies, patenting seemed not to be as important as to be first to market. Looking at software patenting from a competition standpoint, Gosh said, there was a problem in the nature of software that was characterized through incremental steps in development. “Natural monopolies can lead to the monopoly of a supplier,” said Gosh.
Software critics from the EU, despite a downgrading of the scope of the SPLT drafts, are wary about what it could bring in the end. They got support from IP consultant and former British judge Hugh Laddie, who warned against using the SPLT to introduce patents for business models and software through the backdoor: “Competition is good; doing the same as your neighbor, only better and faster, is good. It is what made us a great industrial power and what made the U.S. a great industrial power, or Japan.”
Academics asked for more time and more studies before the SPLT is sent to a diplomatic conference. “We need a period of open-minded experimentation and of search for best practice, not a closed adoption of standards based largely on ignorance and power politics that would in effect export a dysfunctional system to the rest of the world,” said Jerome Reichman of Duke Law School.
David Martin, CEO of M CAM, a Va. company that specializes in patent risk assessment, warned that vested interests in the current system would make reform impossible. Patent offices and patentees don’t have an interest in raising the bar, he said. Patent offices live on application and maintenance fees, and patentees want their patents granted. M CAM’s software, which is helping to identify prior art, is in use by the Indian and Chinese patent offices, as well as the Danish.