Dear Carl
You wrote:
> Keep in mind that most countries around the world belong to the Paris
> Convention (which dates from 1883), and that the Paris Convention
> requires that each member country publish an "official periodical
> journal" (here, the Official Gazette).
Whilst I would agree absolutely with this as a legal theory, I once
(some years ago) had the temerity to write to WIPO asking whether
sanctions had ever been imposed upon a signatory state of the Paris
Convention, for contravention of Article 12(2). This Article requires
that each country of the Paris Union "shall publish regularly" details
on granted patents. Unfortunately, no point in the Convention defines
"regularly" and a number of states (no names mentioned) have not
published a gazette for years.
The response which I had can be unfairly paraphrased as "We only write
the laws, not enforce them."
Since you raise the issue, it actually highlights one enormous
shortcoming in this whole "public v. private" argument, namely that
there is no obligation at the international level (or anywhere else as
far as I can see, unless within national legislation) on patent offices
for them to implement a public disclosure of *unexamined* patent
applications. The Paris Convention only requires a minimal disclosure
by the national patent office, for the public good, of *granted*
patents. With that background, the door was opened to private industry
to start doing intelligent things with unexamined applications once they
became commonplace.
When the Netherlands started the system of deferred examination with
early publication in 1964, they were pioneering a new idea on the
information aspects of the patent system, which was to believe that it
was beneficial to give advance warning to local industry of pending
patent applications. The situation in the Netherlands at that time was
not unlike the US now - backlogs of applications running into 6 or 7
figures, with pendency times up to 10 years, and if your case was
rejected after 9 years pending, you didn't get a fee refund. The whole
system was like US submarine patents writ large, with unexpected,
unsuspected patents popping up in the middle of industry. The solution
of early publication in parallel with a long deferment period of 7 years
had the effect of turning patent documents from statements of granted
rights into descriptions of prospective rights, but simultaneously
enabling a much more rapid appraisal of the state of national R&D and, I
believe, improved decision-making by industry to avoid other people's
IPR. I think that it was at that point that the argument about "how
much information is a national patent office (a) obliged and (b) willing
to release about its patents?" really started to take off. When Monty
Hyams started abstracting rapidly-granted Belgian patents in the 1960s,
he was responding to a hunger for information arising from industry, not
from the legal profession. It has mainly been industry which has driven
demand for more quantity and variety of information about patents, and
hence they have turned to commercial solutions when the national patent
office has failed to keep up with that demand.
Edlyn wrote:
> Tucked away in the circular is the idea that the information doesn't
> have to be provided to the general public in its most useable form, as
> long as it's available at a reasonable cost,
I think that this idea is actually tucked away in the mentality of most
government departments, all over the world. You see the same thing in
many news broadcasts, which give you a 30-second summary of a lead story
then conclude by saying, "Please comment on this story by visiting our
blog" or "More details available at www......" I translate that to mean
"We can't be bothered to put the resource into researching and reporting
this thoroughly - you'll have to do that yourself." Maybe I'm just
getting old, but dumbing down of information dissemination seems to be
one of the biggest issues we face. Fortunately, some technical
solutions to improve information flow are relatively easy to implement,
so.... getting back to the original point of this thread, what Greg says
about better linking between different aspects of US patent information
on their site would be welcomed.
As chair of the Patent Offices Committee, I have noted this thread and
will be keeping it to hand for when we get the opportunity to discuss
with the USPTO. I would encourage other readers of this list, with
views on the information services of other offices, to also air them by
this medium; that way, the committee can get an up-to-date picture of
where you would really like to see improvements, and have some
ammunition to take into negotiations when the opportunity arises.
Stephen Adams
PS Perhaps our model should be the Spanish patent system of the 16th
century - only produce 3 copies; one for the patentee, one for the king
and one for the royal library. All further reproduction prohibited!
--
Stephen Adams
Magister Ltd.
Business address: Crown House, 231 Kings Road, Reading, RG1 4LS, GB
Tel: +44 (0)118 966 6520
Fax: +44 (0)118 966 6620
E-mail: stephen_dot_adams_at_magister.co.uk (replace _at_ by @ to use)
Website : http://www.magister.eu
Magister Ltd. is a company incorporated under the laws of England and Wales (registered number 3407685) having its registered office at Shah & Shin, 42A The Broadway, Joel Street, Northwood, Middlesex, HA6 1PA, GB.
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Received on Wed Aug 27 2008 - 13:00:25
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