31 July 2014

Cutting Red Tape in the Patent System

Cutting Red TapeThe Australian government is on a crusade to eliminate as much red tape as it can.  Or, at least, to be seen to be doing so.  It even has a web site dedicated to the goal of generating ‘deregulatory savings’ of A$1 billion every year, complete with a bold, red progress bar, currently hovering around the $700,000,000 mark.

Aside from taking feedback directly from the public, one way in which the government is pursuing its goal is to task various departments with finding ways to cut their own red tape (thus creating an additional administrative burden on those staff to whom this responsibility falls).  Hence the recent announcement by IP Australia that it ‘is looking for ways to reduce regulatory burden within the intellectual property (IP) system.’

IP Australia explains that it:

…is reviewing its regulations to find areas where we can cut red tape without compromising the integrity of the IP system. We will consult on our ideas as they are developed. However, we need your help to find more ways to cut red tape.

Businesses and individuals deal with IP regulation every day. IP Australia wants to hear from you on ways to help reduce red tape in the IP system.

This is everybody's big opportunity to tell IP Australia what it can do to save its clients time and/or money in dealing with the agency, and with the Australian IP system generally!  We are assured that '[s]uggestions for cutting IP red tape don't need to be long and detailed. Just identify the regulation or rule, tell us what it costs you (Time? Money?), and why you think we don't need it.'

So this is your chance to pull out a copy of the Patents Act and Regulations and set to work with the red pen!  I have a few modest proposals:
  1. the new opposition extension-of-time rules are too draconian, and are costing significant attorney time and client money in order to obtain and defend even short extensions in the early stages of an opposition – I suggest that a first extension of time of up to three months should be available with minimal documentation, with the tougher requirements only kicking in at a later stage;
  2. the formality requirements for patent specifications are based on constraints dating back to a time when patent documents were actually physically published on paper – with filing, review and publication now occurring in electronic form, these requirements could be relaxed;
  3. while IP Australia now expects customers to make use of its online facilities for lodgement of most documents, correspondence in the other direction continues to be primarily by mail, imposing upon recipients an internal processing and distribution burden, particularly on larger IP firms – it is time that applicants be permitted to have an electronic address for correspondence so that this paper channel can be eliminated.
As a practical matter, however, there is probably very little that could be done, in a regulatory sense, to significantly streamline interactions with the Patent Office.  For the most part, processes that are complex and burdensome (such as managing opposition proceedings) are necessarily so as a result of the complexity of the patent system. 

The grant of an exclusive right is, in principle, a significant action which may have substantial economic consequences.  To water down the associated regulatory requirements and procedures, purely in the name of ‘cutting red tape’, risks doing a far greater disservice to the wider community.  As IP Australia has rightly noted, a reduction in the regulatory burden cannot come at the expense of the integrity of the IP system.  I therefore do not anticipate that a great proportion of the government’s savings will be contributed by the Patent Office.

Nonetheless, if you have any bright ideas for reducing the costs of dealing with IP Australia, in relation to patents or any other IP rights that it administers, the email address to which you can send your suggestions is dereg@ipaustralia.gov.au.

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