The structure and the evolution of essential patents for standards: Lessons from three IT standards

This paper examines the structure and the evolution of the patents declared as essential for three major technical standards in information technology (MPEG2, DVD and W-CDMA). These standards have many essential patents, which are owned by many firms with different interests. Many patents have been applied even after the standard was set. We analyze three important reasons for why the essential patents are many and increase over time: they cover a number of different technology fields, there exist R&D competition even in a narrowly defined technology field and a firm can expand its patent portfolio by using continuations and other practices based on the priority dates of its earlier filed patent applications in the USA. Around 40% of the essential US patents for MPEG2 and DVD standards have been obtained by using these applications. However, our empirical analysis suggests that a firm with pioneering patents does not obtain more essential patents, using these practices.standard, essential patent, continuations

Entrance Ramps, Tolls, and Express Lanes – Proposals for Decreasing Traffic Congestion in the Patent Office

This Article proposes implementing a multitier patent system by the creation of two additional roads or routes that a patent application may follow. Because many patents are not sought with the intention of pursuing the traditional patent reward of commercialization or profit through access control, that is, the exercise of the limited patent monopoly, there is no reason for every single application to follow the current route. The creation of an auxiliary, or side road, would decrease crowding on the current patent grant highway while still allowing the nontraditional applications to enter and traverse the patent grant system with different points of access. At the other end of the spectrum, there are patent applications that would derive more benefit through expediency in the patent grant system. For those applications, this Article proposes the creation of express lanes through the patent grant system. These two additional routes, used in conjunction with the current patent grant highway, would arguably decrease crowding, thus allowing for quicker patent grants as well as more careful analysis by the Patent Office and fewer bad patents. Because the proposed system considers the applicant\u27s intended use for the patent,9 whether for the traditional patent reward of exclusion or otherwise, the patent grant highway is further modified to address the unique needs ofthe applications. These additional modifications may further decrease the traffic congestion. The expected outcome of the implementation of this proposed multitier patent grant system would be improved quality of issued patents as well as decreased time from application filing to patent grant. Part II of this Article discusses the notion of nontraditional patent usage by considering the inventor\u27s intent as well as externalities, such as market realities, that shape how a patent will be used. It also elaborates on the problems of patent quality and speed of issuance alluded to above. Part III then presents a model for categorizing patent applications into three types, based on inventor intent and market realities as understood at the time the application is filed. Part III also identifies the peculiar requirements of each of the three proposed categories of patent applications, considers how the current patent grant system fails to meet these needs, and further, analyzes how these failures affect the speed and quality metrics of the current patent grant system. Part IV proposes a multitier patent system that uniquely addresses each application type described in Part III and discusses how such a multitier system meets the unique needs of each application type as well as leads to overall improvement in patent quality and speed of issuance. Finally, Part V reviews and compares multitier patent systems in existence internationally as well as proposals for multitier patent systems raised by commentators. It further answers why the multitiered patent system proposed in this Article does not suffer the same criticisms as have been proffered for other multitiered patent systems

Entrance Ramps, Tolls, and Express Lanes—Proposals for Decreasing Traffic Congrestion in the Patent Office

This Article proposes implementing a multitier patent system by the creation of two additional roads or routes that a patent application may follow. Because many patents are not sought with the intention of pursuing the traditional patent reward of commercialization or profit through access control, that is, the exercise of the limited patent monopoly, there is no reason for every single application to follow the current route. The creation of an auxiliary, or side road, would decrease crowding on the current patent grant highway while still allowing the nontraditional applications to enter and traverse the patent grant system with different points of access. At the other end of the spectrum, there are patent applications that would derive more benefit through expediency in the patent grant system. For those applications, this Article proposes the creation of express lanes through the patent grant system. These two additional routes, used in conjunction with the current patent grant highway, would arguably decrease crowding, thus allowing for quicker patent grants as well as more careful analysis by the Patent Office and fewer bad patents. Because the proposed system considers the applicant\u27s intended use for the patent,9 whether for the traditional patent reward of exclusion or otherwise, the patent grant highway is further modified to address the unique needs ofthe applications. These additional modifications may further decrease the traffic congestion. The expected outcome of the implementation of this proposed multitier patent grant system would be improved quality of issued patents as well as decreased time from application filing to patent grant. Part II of this Article discusses the notion of nontraditional patent usage by considering the inventor\u27s intent as well as externalities, such as market realities, that shape how a patent will be used. It also elaborates on the problems of patent quality and speed of issuance alluded to above. Part III then presents a model for categorizing patent applications into three types, based on inventor intent and market realities as understood at the time the application is filed. Part III also identifies the peculiar requirements of each of the three proposed categories of patent applications, considers how the current patent grant system fails to meet these needs, and further, analyzes how these failures affect the speed and quality metrics of the current patent grant system. Part IV proposes a multitier patent system that uniquely addresses each application type described in Part III and discusses how such a multitier system meets the unique needs of each application type as well as leads to overall improvement in patent quality and speed of issuance. Finally, Part V reviews and compares multitier patent systems in existence internationally as well as proposals for multitier patent systems raised by commentators. It further answers why the multitiered patent system proposed in this Article does not suffer the same criticisms as have been proffered for other multitiered patent systems

MPEG LA’s Use of a Patent Pool to Solve the CRISPR Industry’s Licensing Problems

Since 2012, CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) technology has revolutionized how scientists approach gene editing. CRISPR allows for easier modification and alteration of the genome. This technology has potential applications ranging from correcting genetic defects to the treatment and prevention of diseases—CRISPR’s potential upside is unquestionable. However, CRISPR’s current patent landscape presents a variety of roadblocks for research, innovation, and profit. This Note discusses the potential use of a patent pool to alleviate some of these roadblocks. This Note begins with a discussion of the independent administrative body attempting to create such a patent pool, MPEG LA, before discussing the current patent landscape. Next, it discusses the licensing issues biotech products face when attempting to create a patent pool. Finally, this Note analyzes the prospects of MPEG LA’s current attempt to create a patent pool in the CRISPR arena. This analysis discusses why a CRISPR patent pool would work, as well as arguments suggesting its failure. This Note ultimately concludes that, while there are many barriers which could impede a CRSIPR patent pool’s success, MPEG LA’s patent pool is a promising approach to a complex licensing problem in a budding technological area

Virtual Designs

Industrial design is migrating to the virtual world, and the design patent system is migrating with it. The U.S. Patent and Trademark Office (USPTO) has already granted several thousand design patents on virtual designs, patents that cover the designs of graphical user interfaces for smartphones, tablets, and other products, as well as the designs of icons or other artifacts of various virtual environments. Many more such design patent applications are pending; in fact, U.S. design patent applications for virtual designs represent one of the fastest growing forms of design subject matter at the USPTO. Our project is the first comprehensive analysis of design patent protection for virtual designs. We first take up the question of virtual designs as design patent-eligible subject matter, a question that has not yet been tested in the courts. We show that longstanding principles of design patent jurisprudence supply an answer to the question, with surprisingly little need for adaptation. We then present the results of an empirical study analyzing all issued U.S. design patents on virtual designs and their prosecution histories. Here we show how utility patent metrics for quality and value can be extended to design patents. Using these metrics, we show that design patents on virtual designs fare at least as well in quality and value as do design patents on other types of designs. In fact, design patents on virtual designs fare better in some respects. And, finally, we conclude by identifying issues that are likely to arise in anticipated future litigation over patents on virtual designs

Dulling the Cutting Edge: How Patent-Related Policies and Practices Hamper Innovation in China

This study’s statistical analysis shows that patent quality and innovation in China deserve improvement, and an in-depth legal, management science, and economic analysis in the study shows that various patent-related policies and practices actually hamper patent quality and innovation in China. Over 50 recommendations for reform are provided. The study is divided into four chapters, summaries of which are as follows: Chapter 1: Although China became the world leader in quantity of domestically filed patent applications in 2011, the quality of these patents needs improvement. Also, while certain innovation in China is rising, the country’s actual innovation appears overhyped by some sources. Chapter 2: There appears to be an overly heavy focus on government-set quantitative patent targets in China, which can hamper patent quality and innovation. This overemphasis involves over 10 national-level and over 150 municipal/provincial quantitative patent targets, mostly to be met by 2015, which are also linked to performance evaluations for SoEs, Party officials and government ministries, universities and research institutes, and other entities. Chapter 3: China has a wide-range of other policies, many of which are at least partially meant to encourage patents, that can actually discourage quality patents, and highest-quality patents in particular, and innovation. Examples of these policies include a variety of measures with requirements for “indigenous intellectual property rights” that are linked to financial incentives (many of which are unrelated to government procurement); a range of other government-provided financial incentives for patent development (e.g. certain patent filing subsidies); inappropriate inventor remuneration rules; discriminatory standardisation approaches; and a wide range of others. Chapter 4: There are a host of concerns surrounding rules and procedures for patent application review and those for enforcement of patent disputes that can hamper building of quality patents and innovation in China. These include concerns about abuse of patent rights, difficulties invalidating utility models, and a wide range of other issues

The Examination Effect: A Comparison of the Outcome of Patent Examination in the US, Europe and Australia, 16 J. Marshall Rev. Intell. Prop. L. 21 (2016)

The article provides an answer to a question that, rather surprisingly, has not been addressed in the academic literature to date: What is the practical effect of patent examination? It does so by undertaking an empirical analysis of the examination of nearly 500 patent applications, filed in identical form, in three patent offices: the United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), and the Australian Patent Office (APO). By comparing the form of claim 1 as granted with claim 1 in the patent application, we can identify whether there is any meaningful difference between the two and, if so, what is the type of difference. Any identifiable difference will show both the extent to which, and the way in which, the examination process within each office has a practical effect. Furthermore, by comparing the frequency with which each office effects meaningful change to claim 1, we can identify in which of the offices the process of examination has the greatest practical effect. We find that the routine effect of patent examination is to produce meaningful change, specifically a narrowing, to the definition of the invention contained in claim 1 of the patent. Importantly, this effect occurs more often in the USPTO than in the EPO, and more often in both of those offices than in the APO. Notably, our findings suggest that the quality of patents granted by the USPTO is higher than those granted by the other two offices despite its reputation for issuing many bad quality patents