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back to article UK patent rules put firms at disadvantage

Until recently InRotis, a small company spun out of Newcastle University, was part of a High Court action aimed at forcing the UK Intellectual Property Office to ensure the patent protection offered to UK patent holders matches that available in Europe. However, the firm was granted a European patent for its work, and as a …

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Has there been a glitch in the Matrix?

We've already done this one, lads & lasses.

The solicitors (not streetwalkers, though they do prostitute themselves shamelessly...) are losing out on bags of cash that EU and US solicitors are getting their mitts on. So (the legal) industry is being hurt by the lack of software patents in the UK.

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Patents only work for small companies

They're fine for allowing small inventors to protect their breakthrough idea and stop it being poached by a larger company.

However when a large company does the same, they sue anyone who makes anything remotely similar.

Ultimately it's better to have the freedom to create pretty much whatever you like, so long as you aren't blatently cloning someone's product.

The irony of patents is that by having to make your design different to get around a patent you can often end up with a superior product.

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Way to go!

Now all we need is to fix the bloody EPO from granting software patents. It's quite funny because the UK has precedence for throwing software patents out anyway; the combination of software with hardware is not novel or inventive in any way so doesn't in my books allow a patent.

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@Giles Jones

Eh?

Patent protection for any size enterprise means the costs of research and development have some chance of being returned by securing the market for the invention for the inventor.

I agree it's not a perfect system, but no protection at all would sifle creativity completely, why would anyone bother to develop new stuff when copying everyone else's was so much more cost effective

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Generally in my experience a lot of products that have been redesigned soley to get around a patent are significantly worse at performing the function they are designed to address., not better as you suggest.

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Protection *from* patents, not *by* patents

Actually, everyone, small and large suffers from the existence of the patent system. Small inventors don't get protected - they get threatened - it typically goes like this:

Small Co: I have designed a new widget.

Big Co: license it to us on unfavourable terms, or else.

SC: It's patented.

BC: Yes, but you infringe on multiple patents that we hold

#Note: These may or may not be valid

SC: We can't afford to fight you - you win.

Seriously, the entire system is utterly broken in principle, as well as practice. It gives far too many rights to patent holders, because (a)they stand on the shoulders of giants, i.e. the "intellectual property" isn't all their own work (b)why should a patent holder have the right to crush another inventor who came up with the same (usually obvious) idea, completely independently.

I believe the UK should unilaterally pull out of WIPO, and de-recognise patents in this country. (As a quid-pro quo, we obviously would not enforce UK patents in other countries.) This is exactly what the USA did in its earlier days, and how Switzerland founded a major chemical industry. It would be a huge boost for UK manufacturing.

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Where it should go to

One cannot change rules only to gain advantages! If the patent rules need a change then they need one regardless of what other countries are doing. Besides, having independent rules has the advantage of giving us a stronger position when it comes to defining the patent rules for Europe.

However, more important than this one change should be what it will look like in the future. Some centuries ago there were only a few inventions per year. Today we are creating thousands of inventions and this development continues. The next generation might already see thousands of inventions only per day. If we then hold on to rules like the church held on to the Spanish inquisition we find ourself in a future where we slap one another for simply having ideas.

Eventually these rules have to go and to let the economic competition sort it out. Some companies today do not need their patents but only keep them for defence. If they get sued they may be able to sue back and thereby settle the situation. These companies often employ many developers and scientist creating cutting edge technology that gets surpassed by its next generation only after just 6 months. No one today can compete with these companies even if they would start giving out the blueprints of their products*). For these companies there no longer is a point in holding patents for protecting their research investments. They have moved the research closer to the production process to a "just in time"-research.

Sven

*) Companies like IBM, Intel, AMD, Nvidia etc. in fact give out reference designs to support what others only call stealing.

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@Richard Neill

This discussion dates back to the 19th century when Europe reformed and/or abandoned its patent system wholesale. Switzerland and the Netherlands had no patent system for a quite while. The pro-patent advocates won the day when Europe slid into a depression and protectionism. Patents were seen as similar tools to tariffs, i.e. the theory that protecting firms from competition should make them stronger.

Today of course the theory behind patents has been long lost, we just have to live with the system and try to reduce its worst effects. But that is hard when the system is extremely aggressive at growing and occupying new areas, like software.

See http://www.digitalmajority.org/forum/t-27067/how-the-french-turned-exclusive-privilege-into-property for a history of the 19th century arguments. Most of the points made then still apply today.

Patents work for large incumbents, patent trolls, and patent lawyers & experts. They damage everyone else. Software patents do significantly more damage to significantly more people due to the network effects both in development and use of software.

Beresford and ilk are gaming the system, trying to both play it, and fix the rules to suit their self-interest.

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The deep flaw is non-availability of development capital

As an inventor, I can only fall back on my own experience. I filed five patent applications 16th January 1989 and, simply because I could not afford to, (had no access to the capital needed), I left three in abeyance and carried on with the other two. So I had two UK patent applications. Now, when you get to the stage of applying for anything other than your initial UK patent, (long before you have any idea of a grant of the original application), you have to make a choice. if you wish to apply for a European patent, you first of all have to formally abandon your UK application. So, having done that I then found, what with the costs of using a patent agent, I could file the applications, but was then faced with the costs of process, search and examination. By that time I was in the middle of a massive recession and had, several times, to ask for more time to pay the filing and search fees. At each point where I could not afford to pay the dues I was granted an extension in time, but at the same time fined for not paying on time and at the end of that process, early 1992, I was both unemployed and on welfare while being faced with a bill amounting to the price of a small house to fund the European patent process for two patent applications. Ergo, the system formally abandoned me.

A close friend and associate loaned me a small sum and using that, and, as I had filed a Patent Cooperation Treaty Application, (PCT), allowing me the right to apply to every country, I filed an application for the United States of America. At the same time, I also set into motion the translation of the very costly, (but very well drafted by the expensive patent agent - no complaints), File copy agreed with the international division of the UK patent office into Korean and Japanese and had them filed as applications. (I could not afford to pay for the translations except by tiny instalments and that in turn brought me into an amazing situation with my Japan patent agent who had never known any Japanese inventor being unfunded). Something quite unheard of in Japan as the inventor is set at the pinnacle of Japanese industrial society.

I found that dealing with the US patent office an interesting experience. They accept that ordinary individuals file patents and do not immediately, (unlike the UK patent office), demand that you employ a patent agent. Indeed, if they had, I would not have been able to proceed. Over the next few years I worked my way through a mountain of "Office Actions" to the point where the US patent office agreed they would grant, but I needed professional help with drafting claims that met the US patent office requirements.

I then, by dint of persistence on the phone found myself an agent who agreed to draft claims. To cut a very long story short, I was granted my first US patent in Sept 1998, nearly ten years after first filing. Almost immediately, without any intervention on my part Japan granted me a patent based upon the original translation of the original record copy that had been passed through WIPO.

I am now the proud owner of the Japan patent and three US patents, (the original and two continuances), and have, on the face of it, a very valuable intellectual property holding. You would be wrong to think that.

I still owe the original UK patent agent 15,000 UK Pounds. Over the period since filing in 1989, I suppose I have paid out many many thousands and have never received a penny in return. Moreover, every year, I have to pay out patent maintenance fees to keep them in use.

In my humble opinion, the patent system is deeply flawed. Not because of the way it is organised, but because unless you have access to substantial capital, the patents we are granted are, very effectively, worthless. Indeed, more than worthless, very costly.

The deep flaw is non availability of development capital. Please, do not mention Venture Capital. It does not exist unless you are prepared to give away your patents, making a mockery of the whole idea of free enterprise and free competition. At my level, Venture capital is a not funny joke. Period.

The entire international patent system, not just the UK, needs to recognise that it is embedded in a very cosy, extremely well paid occupation, employment totally protected by government treaty and law; for everyone, except the individual inventor.

The overall loss to the nations income, in just my own case, must run to billions. (I hold the original patents for any wireless transmitter, which includes a camera and a navigation system.... all your GPS enabled camera phones for example), filed 16th January 1989 no less.

Disregard the other of the two original applications, (that I persisted with), which is left hanging to cut costs and again any other ideas I have had, (usually several per year that have never seen the light of day and now regard that I have just started the whole process all over again, but now with a UK patent office that simply will not deal with you unless you employ a patent agent. (No doubt on the assumption that, as he has a handsome income, everybody else involved with filing patents must either be as wealthy or corporate and thus well funded).

To conclude:

There is no incentive for anyone to make any change to the existing system. The European examiners, (as New Scientist noted when the EPO was first established), earn a very handsome income. I cannot imagine any UK examiner earning anything less. My patent agent back in 1989 was charging handsomely. Everyone, from civil servants to lawyers, everyone inside the system earns a good stipend. No one and I repeat for effect; No One, has any incentive to create the funding we need to be able to compete against the incumbents to the present market place for our "new" products.

They all know in their hearts that we keep on applying for no other reason than it presents the greatest intellectual challenge, with the smallest reward.... and we go on because, at the end of the day, we can stand tall as individuals in a desert ocean of total indifference knowing they cannot.

Not one of them invented anything themselves and they have the brass cheek to look down upon us because we are financially poor.......

Christopher Francis Coles.

Very proud to call himself; Inventor.

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