How a new patent process could support UK innovation

Patent trolls - companies that stake their claims to inventions that they have no interest in building - have blighted the technology industry for years. But a new application process, about to kick off in the UK, could make these pests a thing of the past.

On 1 June, the UK’s Intellectual Property Office (IPO) will begin a patent application trial that could herald a much saner approach to intellectual property rights.

It is launching a seven-month peer review trial, where interested parties will be invited to comment online on a number of computer-related patent applications.

This crowd-sourcing approach is intended to improve the quality of patents granted by providing external opinion on whether patent applications are genuinely innovative.

The trial will involve a handful of patent applications being published on the peer-to-patent (P2P) web site, and will give registered users the chance to review the applications and comment on them.

Over the course of the trial, the IPO intends to put about 200 computer-related patent applications on the site for review, with each new posted application linked to from the IPO’s P2P blog.

Peer-reviewed patents is the brainchild of New York Law School professor Beth Noveck, who - having studied US applications - felt that the lack of third-party input to the system meant patent examiners too often lacked the time or necessary information to establish whether a patent was new or inventive.

The subsequent trials of P2P systems in the US and Australia have received an enthusiastic welcome from the industry, which has encouraged the UK IPO to launch its own trial.

“The UK system is slightly different, in that third-party input into the application procedure has always been possible - but it’s just never been widely used,” says Nigel Hanley, senior patent examiner at the UK IPO.

So why the need for patent reform? One of the chief criticisms of the patent system - both here and on the other side of the Atlantic - is that too many undeserving computer-related patents are granted. Many of them are deemed to be lacking in innovation.

In May 2011, Apple’s co-founder Steve Wozniak told the Embedded Systems Conference in Silicon Valley: “A lot of patents are pretty much not worth that much… Any fifth-grader could come up with the same approach.”

The P2P trial aims to raise the bar by ensuring that the examiners can take feedback from as many sources as possible, says Hanley.

“Identifying novelty is very difficult; we rely on specialist journals, but peer reviews will be better at doing this,” he adds.

The critics of existing patent regimes, such as Wozniak, have argued that, aside from the uninteresting nature of many of the patents, they have seen the emergence of companies intent on taking out patents, but with next-to-no interest in developing the ideas into commercial technologies. Instead these so-called patent trolls rely on extracting licence fees from any company with the ingenuity to actually produce viable technologies.

“What worries many people about the current system is the breadth with which some patents are applied,” says Theo Savvides, head of intellectual property at law firm Osborne Clarke.

For example, some firms will have been granted a patent for a specific piece of technology, but then subsequently assert that the patent covers a broader range of technologies. “It can be easier for other firms to settle by paying a licence fee rather than engage in a lengthy dispute,” he argues.

Such actions work to push up the costs of technology to end-users. “Patents need to protect those with genuine inventions, but also ensure that it is only the innovative part of that invention that gets protected,” says Savvides.

So what’s to stop these patent trolls monopolising the P2P comments and creating a fog of confusion around any applications that relate even slightly to patents they already hold? In practice, admits Hanley, nothing.

“But the comments form only one part of our examiners’ decision-making process. They will still undertake the rigorous checks we do today,” he says. “Besides, we’re well aware that some commentators’ views will be biased. We know what to look out for.”

If P2P can attract sufficient numbers of knowledgeable commentators, it should help improve the application procedure, says Savvides. But finding people that have the time to do the analysis will not be easy, and will inevitably favour large enterprises that can spare the manpower.

However, the experience in the US, where a similar trial took place, offers more hope. There, nearly 3,000 people from a variety of backgrounds signed up and it won widespread approval among the patent examiners.

If the UK trial is equally successful, P2P could be used for a far wider range of patent applications, such as communications technology, in the future.