19 November 2011

Patent Office, Professionals, Must Get With the Social Media Program

IPAU TwitterOn Wednesday this week we attended IP Australia’s ‘IP Forum’ event in Melbourne, Fighting the War on Patents.

Putting aside the hyperbole of the title for one moment, the concept was a good one – bring together a panel of experts to present their thoughts, and engage in debate, on issues such as smartphone patent battles, and gene patenting, which have generated some negative media coverage of the patent system.

Gathered together for our enlightenment were: Mr Philip Noonan, the Director General of IP Australia; Dr Trevor Davies, a Partner at Allens Arthur Robinson Patent & Trade Mark Attorneys and a member of the Council of the Institute of Patent and Trade Mark Attorneys of Australia (IPTA); and Dr Aaron Mitchell, Manager of the South Australian Research & Development Institute (SARDI).  Following the formal presentations, they were joined by Mr Michael Caine, Partner at Davies Collison Cave, and also an IPTA Council member.

In other words, four advocates for the patent system.  Not that there is anything necessarily wrong with this – Patentology is pro-patent in general – although a dissenting voice might have livened things up a little.  But the three speakers appeared to make a number of common assumptions: firstly, that they were preaching to the choir, i.e. a room full of fellow patent-proponents; secondly, that the negative coverage of the patent system is generally unfair, largely factually incorrect, and the result of either ignorance or malicious intent on the part of opponents; and thirdly that the point of the forum was to discuss what ‘we’ should be doing to counter this ‘attack’ on the system.

The first of these assumptions was proven wrong by a question from a software developer in the audience, who expressed the view that software patents are hampering innovation in his field.  The second assumption may be broadly correct, but fails to address the real issue, which is the underlying motivation for expression of negative views.  And the third assumption ensured that all three speakers gave presentations in which they agreed furiously on the need to address the criticisms, and disagreed mildly on the best means for doing so.


Surely the purpose of a ‘forum’ is engagement, not pontification.  Otherwise, why not call it a ‘seminar’ or a ‘lecture’?

We have written before, in Why IP Professionals Must Take ‘Gene Patent’ Opponents Seriously, of our view that the IP community needs to make greater efforts to engage with critics of the system, and concerned persons generally, in the wider community.  In our society, a disagreement over matters of public policy is not a ‘war’ – it is democracy.  Declaring there to be an ongoing ‘war on patents’ is not only frankly disingenuous (we would be happy to wager that the vast majority of society is quietly uninterested), but it is counterproductive.  It places a legitimate conversation into the same category of emotional escalation as the so-called ‘wars’ on drugs, terror and poverty.  And whatever may have been achieved in any of these campaigns, none of it has come as a result of declaring ‘war’.

To reiterate from our earlier article, when people lack confidence in the law, they tend not to respect or support it.  If we want people to support, rather than criticise, the patent law, then they need to feel confident that the law is ‘good’, and that their genuine concerns have been given due weight in its drafting.  This is no less true when those concerns are emotional, philosophical, moral or ethical in nature, rather than the result of rational evaluation of the economic merits.

The solution, in our view, is to engage, engage and engage!  And this is now possible in ways that are historically unprecedented.  Never before has it been feasible to hold a conversation in which, in principle, the entire community (nationally, or even globally) can participate.  Social media make this possible.  Of course, most people will not participate, but for those with a sufficient interest there can – and should – be a wealth of information available in language that they, as intelligent laypeople, can understand.  And there can – and should – be opportunities for them to participate in (hopefully civil) discussion, so that their voices can be heard.
It was disappointing that – Dr Mitchell excepted – there was little talk at the IP Forum about the use of social media.  Our take on the positions expressed by each speaker follows.
Philip Noonan
For Philip Noonan, the solutions to the issues confronting the patent system come in the form of a few tweaks and tune-ups to the problem areas. 

By his own pre-admission, Mr Noonan made ample reference to the Raising the Bar Bill (see Senate Patent Reform Bill – A Closer Look) as a panacea for problems – including many of those concerning gene patent opponents – associated with patents being granted for insufficiently inventive developments, and patents that are overly-broad relative to their disclosure. 

Problems with ‘bad patents’ being granted when they should not be will, apparently, be addressed by international work sharing arrangements such as the ‘Vancouver Group’ initiative between the Australian, Canadian and UK patent offices (see Minister Announces Greater Cooperation between Canadian, UK and Australian IP Offices). 

The launch of IP Australia’s eDossier service earlier this year (see IP Australia Launches Enhanced Patent Search with Online File History) provides greater transparency and public access to the activities of the Patent Office, and the progress of applications through the system.

As for issues around patenting of software and ‘business methods’, Mr Noonan assured the audience that there are a couple of cases pending before the Federal Court, and so we can expect to have greater clarity in this area in the near future.  We have recently said on this blog (in the conclusion to Another Computer-Implemented Invention Struck Down) that we also hope these anticipated decisions will provide greater clarity.  But what is plainly apparent, which Mr Noonan neglected to mention, is the manner in which these appeals – at great expense to the appellants, and also to IP Australia – have been provoked by IP Australia’s own deliberate pushing of the boundaries of the law.

In other words, we should all really trust that IP Australia has the issues in hand.
Trevor Davies
Dr Trevor Davies recounted for us his experiences in lobbying – successfully – against the Patent Amendment (Human Genes and Biological Materials) Bill 2010 on behalf of IPTA.  His presentation provided some interesting insights into the value of public relations consultants, the mechanics of lobbying, the accessibility of politicians, the ‘dirty ticks’ employed by some lobbyists, the rough-and-tumble of Senate hearings, and the parliamentary process in general.

So to add to Mr Noonan’s perspective, we learned about how things happen in other parts of Canberra – an Australian city in which hardly any Australians actually live, most rarely (if ever) go, and those that do are mostly involved, directly or indirectly, in the processes of politics and government.

Political engagement at this level is, without question, an important part of the democratic process.  However, the events described by Dr Davies are another symptom – just like the adverse media coverage – of a single underlying cause, which is the dissatisfaction, rightly or wrongly, of a segment of the community with the state of the patent laws.

Defeating a bad bill was a good outcome – and there is no question that the Patent Amendment (Human Genes and Biological Materials) Bill 2010 was a bad bill.  But ‘defeating’ the people whose concerns led to its introduction to parliament in the first place, without ever actually engaging with them at a grass-roots level, has probably only increased the level of  underlying dissatisfaction.  Some of them no doubt feel that, once again, not only have their concerns been ignored, but dismissed with disdain.
Aaron Mitchell
The one nod to contemporary means of engagement came from Dr Mitchell, who advocated the use of new media.  However, it seemed for the most part that he envisaged it as a communications channel for getting the facts and positive messages out to the community, when the mainstream media is – allegedly – only interested in dramatic angles. 

Stories of evil corporations patenting genes and ‘owning’ the very material that makes us who we are, make for good copy, no matter how inaccurate they may be.  And when even a respected current affairs program like Four Corners is largely taken in by the propaganda on one side of the debate (see Review: Four Corners – "Body Corporate"), there is no doubt that we have a problem.

One of the examples of ‘good’ use of alternative media offered by Dr Mitchell was Michael Gilbert’s pro-gene-patents article Will patenting crops help feed the hungry? on The Conversation, which bills itself as ‘an independent source of information, analysis and commentary from the university and research sector — written by acknowledged experts and delivered directly to the public.’

In our view, The Conversation certainly qualifies as ‘new media’, but we would not call it social media.  It has as much in common with traditional print outlets for academic discourse as it does with social media.  Articles are subject to editorial oversight.  To write for The Conversation you must be an academic or researcher – otherwise, no amount of intelligence or expertise will qualify you.  Anyone can sign up for an account to comment, but must use their real name.

There is nothing wrong with any of this.  The Conversation is a platform intentionally created for the legitimate purpose of providing trustworthy expert commentary from the academic and research sector to the wider community.  This is a worthy objective, but it is not the right model for wider community engagement.  It is no doubt an ‘Andrew Bolt free zone’, but it is also free of those who make up his substantial audience, and who would view The Conversation’s authors as members of the academic elites that Bolt so frequently criticises and ridicules.

The specific objective of ‘getting the message out’ misses the point of social media.  Social media are interactive and responsive.  They give people from all walks of life direct access to you and your organisation.  In our view, anything that does not do this should not be called ‘social media’.  ‘New media’ maybe, or ‘alternative media’, but not ‘social’.


The biggest disappointment of the forum, however, was Mr Noonan’s response to a question about whether IP Australia would be making use of social media platforms, such as Twitter.  His reply was that, while they had considered it, they had concerns about whether this would be appropriate in view of IP Australia’s regulatory role, which might lead to people believing that they could use this channel to direct policy or regulation.

Worse yet, Mr Noonan suggested that IP Australia’s ‘Dream Shield’ project was an example of the authority’s existing forays into social media.  Dream Shield, with its online multimedia materials, including YouTube videos, is certainly ‘new media’, but it is not social media.  It remains, in essence, a one-way communication from IP Australia to the community.


Clearly, IP Australia’s Director General has a bit of catching up to do.  His concerns about the possible down-sides of direct interaction with the public are not without merit, but they seem very traditional, and suggest a closed organisation that is unwilling to relinquish full control over its communications.  The whole point of social media is direct interaction, and we would suggest that the benefits outweigh the potential risks.

The USPTO has an active Twitter account (@USPTO), as does the European Patent Office (@EPOorg), the Japanese Patent Office (@jpo_NIPPON), the UK Intellectual Property Office (@The_IPO) and others.  IP Australia has at least taken care of its intellectual property rights and acquired @IPAustralia, and has (at the time of writing) amassed 37 followers, all patiently awaiting the first tweet!

And if USPTO Director David Kappos can maintain a blog (which permits comments, albeit moderated), we can see no reason why Philip Noonan could not do so.

If IP Australia can afford to provoke and defend Federal Court appeals of ‘manner of manufacture’ rejections, in order to create greater ‘clarity’ in the law, we can see no reason why it could not afford to hire corporate communications staff to specialise in managing a meaningful social media presence.

And, just to be clear, the same goes for the wider IP profession, which also has an interest in engaging with the general public, when not busy lobbying in Canberra.  The discussion of social media hardly drew an enthusiastic response from members of the profession who were present at the forum.  A few patent attorney firms are on Twitter but, with rare exceptions, are using it only as an additional channel to push out news updates, and not as a platform actually to engage and interact with the wider community.

So who will take up the challenge first?  For how long is @IPAustralia going to continue to disappoint its followers?  In fact, let’s see if we cannot prove the power of social media right now.  Dear reader, if you are on Twitter please follow @IPAustralia, and encourage your followers to join you – #getIPAUtotweet!


IP Nerdette said...

Very glad you posted this.  I too was at the event, and was also disappointed at Mr Noonan's aversion to social media.  The solution IS engagement and for people who know very little about IP regimes social media could help clarify that.   I think there is a tendency for govt authorities to shut people out, and using social media is an informal way to let people's voices be heard.  

billrobo said...

So in summary, the lawyers, clerks, and bureaucrats who make their professional living off patents are (not surprisingly) mostly in favour of continuing the extension of patents into software. Those making their professional living out of building or administering software (and thus potentially effected by the rise in software patents) are (also not surprisingly) concerned about the extension of patent law into the realm of software (a domain historically coved by copyright law). Though it appears both sides of the debate are potential victims of "self serving bias", decrying the opinions of the alternate viewpoint as the "result of either ignorance or malicious intent" doesn't appear to be very nuanced (or empathetic) contribution.


Patentology (Mark Summerfield) said...

Hi Bill, and thanks for your comment.

Generally speaking I agree with you that more empathy for the position of the other side in these debates would be a good thing. If you have not already done so, you may wish to read my article on 'Why IP Professionals Must Take ‘Gene Patent’ Opponents Seriously'.

However, I also think that there is an important difference between debates around gene patents, and those around software patents. In the case of genetic technologies, the dissenting voices are often those outside the industry who are concerned about the moral, social and/or economic impacts of patents. Their 'self-interest' lies primarily in the desire to promote strongly-held beliefs, and mostly does not involve personal financial benefit.

In the case of software, however, there are both opponents and proponents of patents within the one industry. And contrary to what you may read, the division is not between large versus small companies/developers. Every patent attorney who practises in this technology area receives enquiries on a weekly basis from small software developers who wish to obtain patents on their innovations as a way of building value in their business. In many cases this is because they wish to compete against much larger incumbents who would otherwise simply copy their ideas, or because they are hopeful of an exit strategy involving sale or licensing of their technology to an encumbent.

When patent attorneys (such as myself) speak out in favour of software patents we speak not only on behalf of ourselves, but also on behalf of our clients who have made the decision to include patenting as part of their business strategies, and are dependent on their being some certainty and stability in the law.

Some of the responses to the recent change to a proposed limitation on software patents in New Zealand highlight the way in which the industry is internally split on this issue, see e.g. http://www.nbr.co.nz/opinion/tindall-morgan-backed-software-company-resigns-nzict-amid-patents-bill-spat



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