25 October 2020

COVID Update – Surprise Surge in September Patent Filings

Rising arrowDefying the trend of almost every prior month this year, Australian standard patent filings in September were up by 8.1% on the same period in 2019.  This is the largest positive change for any month in 2020, beating pre-COVID January during which standard applications bested the previous year by 7.7%.  The September surge was driven by filings from all of Australia’s top sources of new applications – i.e. the US, Europe, China, and Japan, along with domestic applicants.  Applications originating elsewhere in the world were down, however, as has been the case throughout much of the year.

The boost in filings for September was dominated by PCT national phase entries, which are now higher by nearly 1% over the seven month period from March to September when compared with the same period in 2019.  At the same time, however, direct standard patent applications – including Convention applications, complete-after-provisional filings, and divisional applications – have fallen by just over 10%.  Most of this decline is in ‘original’ filings (down by over 23%), while the number of divisional applications has fallen only slightly in comparison (down by 1.4%).

Unfortunately, the news for September is not all good.  Australian provisional filings were down by over 11% for the second month in a row, and the third time this year.  Overall, provisional filings have declined by 3% for the seven month period from March to September, when compared with 2019.  The decline is entirely in applications that have been professionally prepared and filed by patent attorneys, which have fallen by 4.4%. The number of self-filed provisional applications is up by 0.6% on the same period last year.

Over in New Zealand, September was an even better month than in Australia, with complete applications up by 13.5%, and provisionals up by 35.6% over the same month last year.

07 October 2020

What Can Patent Data Tell Us About the Australian Government’s Plan for Local Manufacturing?

Building blocksThis is a guest contribution from Mike Lloyd of Patent-Insights.  Mike previously contributed an article on the impact, from an Australian perspective, of COVID-19 on international patent, trade mark, and registered designs filingsFurther details about the author can be found at the end of the article.

The Australian Federal Government on 1 October 2020 announced a renewed focus and A$1.5 billion investment in manufacturing, in particular in the following six target areas of technology:

  1. resources technology and critical minerals;
  2. food and beverages;
  3. medical products;
  4. recycling and clean energy;
  5. defence; and
  6. space.

The arguments put forward by the Government include wanting to ‘focus on areas of strength’ and wanting to avoid the lesson of ‘don't try to do everything’.

There are merits in these arguments, and there are also arguments for letting market forces rather than governments select our area of strengths.

But because this is a patent blog, I want to ask whether patent data can help to find Australia’s areas of technology strength.

There are many ways we could ask this question, and the most obvious of these might be to look at overall patent filings.  However, this is an imperfect method, as this data risks being corrupted by low quality patents, and there are many low quality patents out there.

Another approach is to look for highly-cited patents. The citing of a patent by another is generally a recognition that the cited patent has made a contribution to the patent literature, and therefore technology in general.  The number of citations for a granted patent can range from zero to over a thousand, but as a simple rule, we could say that any granted patent with 50 or more forward citations is ‘highly-cited’.  To put this into context, the commercial patent search database Patseer lists 8.4 million active and granted patent families (a family with one or more currently granted patents), but only 163,000 (1.9%) of these have 50 or more forward citations.  In contrast, 5.1 million (61%) of granted patents have no forward citations at all.

These ‘highly-cited’ patents could be regarded as the most important patents, and the filers of these patents as leading applicants, i.e. strong in their area of technology.  We could also argue that the more of these highly cited patents that companies have, the more they can be regarded as technology leaders in their space.

29 September 2020

DABUS Denied – Machines Cannot be Inventors, and the English High Court Agrees

Robot touchIn Thaler v The Comptroller-General of Patents, Designs And Trade Marks [2020] EWHC 2412 (Pat), the England and Wales High Court has dismissed an appeal by Dr Stephen Thaler from a decision of the UK Intellectual Property Office (IPO), which determined that one or more natural persons must be named as inventor(s) on a patent application and, therefore, that two UK applications naming an ‘artificial intelligence’ called DABUS as inventor were deemed to be withdrawn for failing to satisfy this requirement.  Thaler had refused to identify a human inventor on the basis that no natural person had made an inventive contribution to the inventions disclosed in the applications.  Furthermore, he had identified himself as the applicant, claiming ownership of the inventions on the basis of ownership and control of DABUS.  The court also rejected this theory, finding no legal basis for a machine either to own the intellectual property, or for rights in machine-generated inventions to be transferred to a human owner.

Attempts to name DABUS as inventor on corresponding applications have also been rejected by the European Patent Office (EPO), and the US Patent & Trademark Office (USPTO) [PDF 5.27MB].

Readers who have been following developments in this case will be aware that while Thaler is named as the applicant and developer of DABUS, the real driving force behind efforts to recognise machine inventors is Professor of Law and Health Sciences at the University of Surrey, Ryan Abbott, through his Artificial Inventor Project.  In addition to the patent applications filed at the UK IPO, the EPO, and the USPTO, there is also a single international patent application filed under the Patent Cooperation Treaty (PCT) encompassing both inventions, published as WO2020079499.  Abbott not only heads up the Artificial Inventor Project, he is also named as agent for the PCT application, he represented Thaler in the English High Court appeal, and it has been reported that he is also representing Thaler in a parallel Federal District Court appeal in the US.

The PCT application recently entered the national phase in Australia, as application no. 2019363177.  A formalities report has been issued, objecting that the application does not comply with the Patents Regulations 1991, because ‘it is the Commissioner’s understanding that inventors for the purposes of the Patents Act 1990 must be natural persons.  As DABUS is not a natural person the Commissioner is of the view that no inventor has been supplied for the purposes of Regulation 3.2C(2)(aa).’  Thaler has until 21 November 2020 to either: provide the name or names of natural persons who are the actual inventors; or provide submissions to the Commissioner explaining why DABUS, despite being an artificial intelligence, can be legitimately recorded as an inventor.  I anticipate that Thaler will take the latter option, and that his submissions will be rejected on similar grounds to the UK case, given that the scheme for establishing inventorship and entitlement to the grant of a patent under the Australian Patents Act 1990 is similar to the corresponding UK provisions.

In my opinion, Abbott’s Artificial Inventor Project is misconceived.  His arguments as to why we should recognise non-human inventors are unsupported by any evidence, and amount to little more than a personal opinion.  His methods of pushing the issue through patent offices and into the courts may be successful in generating attention, but they are doomed to fail, and wasteful of administrative and judicial resources.  Furthermore, the very idea that machines might be granted the ‘right’ to be recognised as inventors lacks credibility, and is unlikely to secure widespread public support.

In this article, I shall explain my position in more detail, while also taking the opportunity to discuss the English High Court decision, which is likely to be influential in the Australian case.

24 September 2020

Has COVID-19 Affected Patent, Trade Mark or Design Filing Activity – an Australian Perspective

Patent-Insights LogoThis is a guest contribution from Mike Lloyd of Patent-InsightsFurther details about the author can be found at the end of the article.

COVID-19 has had many devastating impacts all around the world, both in terms of fatalities and other health impacts, and also in economic terms.  While the economic impact is yet to be fully understood, it has led to significant drops in GDP activity in many countries. In Australia, the drop in GDP due to COVID-19 has been estimated to be 7%.

But how has this affected IP activity – particularly in relation to intellectual property rights (IPR) filed in Australia, and filed globally by Australian IP owners?

Mark Summerfield has considered this in relation to patents being filed in Australia in recent blogs, and found a 5% decline, which is in line with the drop in GDP, and the largest fall over a comparable time period since the GFC .  This study is intended to consider more international aspects, if from an Australian perspective, and also to consider registered designs and trade marks.

16 September 2020

COVID Update–Australian Patent Filings Down by Five Per Cent Since March

Masked VirusMost of the developed world has been in the grip of the medical, social, and economic effects of the COVID-19 pandemic since around March this year.  I published my first monthly review of the impact on patent filings in early April, at which time it was really far too soon to discern any trends.  But with data now available for the month of August it is becoming clear that – a surge in innovation patent applications by Chinese applicants aside – 2020 is likely to be a low year for patent filings in Australia.  I reported last month that the number of standard patent applications filed in July had been virtually identical to the same month in 2019, following on from a similar result in June.  However, August has marked a return to the negative trends of April and May

Overall, for the six months from the beginning of March to the end of August, the number of standard patent applications filed is down by just over 5% compared to the same period in 2019.  Hardest hit are new ‘original’ filings, i.e. applications filed directly in Australia that are not derived from an existing international application under the Patent Cooperation Treaty (PCT) or divided from an existing Australian standard patent application.  PCT national phase entries are down by around 2%, while divisional applications have declined by just under 3%.  However, new direct national filings between March and August fell by 28% compared with the same period last year, following two years of growth in this category of applications.

The number of provisional applications filed in Australia between March and August is also down, by 1.5% over 2019.  While this may not seem like much, patent attorneys are bearing the brunt of this decline – attorney-assisted filings fell by almost 4%, while the number of applications filed by applicants not represented by an attorney actually increased.

Chinese applicants continued to drive growth in innovation patent applications in August, with filings up by an astonishing 230% compared with 2019.  Over the period from March to August, innovation patent filings increased by nearly 130%.

Meanwhile, New Zealand continues to shrug its shoulders in the face of COVID-19.  Despite an overall decline in filings in August, PCT national phase entries have actually increased compared with 2019 during the six months since the start of March.  And while direct filings were down, this may simply continue a longer-term trend that seems to have been occurring anyway.


Copyright © 2014
Creative Commons License
The Patentology Blog by Dr Mark A Summerfield is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Australia License.