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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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    Authors Look At Positive Impact Of Patents On Public Domain

    Published on 22 November 2013 @ 4:18 pm

    By , Intellectual Property Watch

    A study emphasising the positive effect of the patent system on the public domain was presented this week by two of its co-authors as a side event to the World Intellectual Property Organization committee on development.

    Patents have been important contributors to the public domain, the authors assert, feeding inventions to the public domain after the protection period. Meanwhile, non-practicing entities, sometimes called patent trolls, do not seem to have reduced the rate at which owners are contributing their patents to the public domain, they also found.

    The study [pdf], entitled Patents and the Public Domain (II), was presented alongside this week’s meeting of the WIPO Committee on Development and Intellectual Property (CDIP), taking place from 18-21 November, and was also presented to the CDIP plenary session on 20 November. It follows a first study [pdf] on the same subject, which had been presented during the 4th session of the CDIP, in November 2009.

    The perception of the public domain is often that it results from the expiry of patents, when after 20 years the invention falls into the public domain, but some information on the patent is accessible prior to that date, said co-author Neil Wilkof, of Eyal Bressler & Co. in Ramat Gan, Israël.

    The study is divided into three parts, he said.

    Part I focusses on scope of the public domain, part II examines non-practicing entities (additionally called patent assertion entities) and part III deals with the patent management and its potential impact on the public domain. The analysis carried out in the study looks at time and geographical factors, as well as commercial factors and other goals of various actors, Wilkof said.

    Up to 95 percent of all patent applications have potentially fed the richness of the public domain, he said, adding that the growing rate of patenting across the globe is feeding this public body.

    If the patent system usually grants a patent term of 20 years to the patent holder, not every rights holder maintains the validity of its patents for the whole period, he said. This is brought on by several reasons, such as the patents being challenged, or cancelled. In the United States, he said, some 99 percent of patents are never enforced.

    Territoriality of Patents Advantage to Developing Countries

    Patents are generally filed in a restricted number of countries, he said. Other countries in which the patents have not been filed can benefit from the information publicly available in patent applications, he said.

    Developing countries could then take advantage of this fact, he said. Entities “can use the invention competitively in their own markets and those with no corresponding patent protection,” the study said. “Further, through such exploitation, these entities can gain a competitive advantage in developing improvements to the invention, which then can be the basis for seeking future proprietary patent rights in ANY country. This situation is the basis for a global arbitrage on invention information disclosed in patent publications.”

    “That is the greatest gift and contribution that the patent system can bring,” he said.

    Developing countries and civil society have argued that developing countries often do not have the ability to make use of information contained in patent applications. Technology transfer requires the transfer of know-how as well as technologies, they say.

    Non-Practicing Entities (NPEs)

    The study also explored non-practicing entities, he said, arguing that the practice of acquiring patents without practicing the invention is not a new phenomenon and was cited in a Michigan Supreme Court ruling of 1878.

    NPEs seek revenues from the patents they acquire by licensing the rights or through litigation, he said. The study describes six categories of non-practicing entities, he said: patent assertion entities, patent aggregators, patent intermediaries, universities and research institutions, individuals, and non-competing entities, which are companies asserting patents outside their area of products or services, he said.

    “Some NPEs, like universities, exist to grow and feed the public domain of useful human knowledge,” according to the study, which gave a general evaluation of the contribution of NPEs to the richness of the public domain. It found that basic research organisations were highest on the scale, and patent assertion entities, lowest.

    The study was co-authored by: Prof. James Conley, clinical professor of technology at the Kellogg Center for Research in Technology and Innovation, at the Kellogg School of Management, Northwestern University, Illinois (United States); Peter Bican, doctoral candidate at the chair of Technology and Innovation Management, WHU Otto Beisheim School of Management, Vallendar (Germany); and Neil Wilkof.

     

    Catherine Saez may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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