06 June 2020

Ten Years of Patentology

TenOn 6 June 2010, I clicked ‘publish’ on the very first article here at the Patentology blog.  Back then I did not even have my own domain name.  The URL was patentology.blogspot.com (which still works, incidentally).  As with any new web site, and particularly a new blog in a world with millions of blogs competing for attention, I do not imagine anyone much noticed the new kid on the block.  And, frankly, that is probably just as well.  That first post was a fairly esoteric piece about how the Venetians in 1474 managed to pack all of the core features of modern patent law into a single paragraph, whereas the Australian Patents Act and Regulations (in 2010) occupied a total of 376 pages (not including the nearly 300 pages of Schedules to the Regulations).

While I do not know how many times that first article was viewed (I did not get started with website analytics until a few months later), I do know that the most popular post I ever wrote is Can I – and Should I – Patent My Smartphone App?  This article was published on 4 October 2012, and has since received nearly 65,000 unique pageviews.  It still features regularly in search performance reports from Google, and typically sees a few tens of visits each month.  It was most popular in 2014-2015, when it was viewed over 1,000 times every month.

The second most viewed article is The Story Behind CSIRO’s Wi-Fi Patent ‘Windfall’, published on 5 April 2012, with just over 13,000 unique pageviews.  This article gained popularity as a result of contentious claims that CSIRO was a ‘patent troll’, principally as a result of a hatchet-job published by technology news site Ars Technica (How the Aussie government “invented WiFi” and sued its way to $430 million).  I debunked the Ars Technica piece in a post entitled Five Reasons Why Ars Technica’s Savaging of CSIRO is Appalling, which itself received over 2,000 unique pageviews in under 48 hours after a link was tweeted by celebrity science presenter Dr Karl Kruszelnicki, and gave a boost to views of the ‘windfall’ article itself.  (I recently updated the ‘windfall’ article – which I consider a valuable summary of the history of CSIRO’s Wi-Fi commercialisation efforts, and which still receives a few visitors each month – to repair all of the broken links with references to archived copies of all the now-defunct pages and documents.)

Thanks Apple and Samsung!

if anyone is most responsible for the growth of Patentology, the associated prominence in search results that it still enjoys, and the many opportunities the resulting exposure has brought to me, it is neither CSIRO nor Dr Karl.  My major benefactors over three years between August 2011 and August 2014 were, without question, Apple and Samsung.  Never before – or since – have the Australian media and public shown such interest in patents!  I was fortunate to be in the right place at the right time.  Patentology’s readership, for anything Apple/Samsung related, doubled overnight.  Journalists came seeking comments and quotes, and I was interviewed on radio a number of times.  By the time interest in the Apple v Samsung litigation had waned, the blog had established a solid core audience, and a strong position in search results, that have been maintained ever since.

The Changing Face of Patentology

Over the years, the style and focus of Patentology have gradually evolved.  In the early days I somehow managed to churn out 10-20 posts per month.  Since 2015 it has been more like one per week, although in 2019 I published just 24 articles for the whole year.  On the other hand, the articles I write these days tend to be longer, more in-depth, and involve a lot more original analysis, which takes time to produce.  In terms of subject matter, there has been a shift over time from more news and case reports, to a greater emphasis on policy, analytics, and the ever-changing face of the Australian IP profession (although, of course, I still do news and case reports when the mood strikes).

Oh, and Patentology has had a few facelifts over the years, as well…

Patentology facelifts

A Brief History of the Past Decade

Overall, it has been a pretty eventful decade in which to be writing about patents and related topics.  Of course there have been the news events with broad appeal, such as Apple/Samsung and the CSIRO Wi-Fi win.  But it has also been an eventful period for patent law, policy, and the IP profession. 

In the early 2010’s we had the ‘Raising the Bar’ IP law reforms, comprising the most significant changes to Australian patent law and practice since commencement of the Patents Act 1990.  Passage of these reforms was quickly followed in 2012 by IP Australia’s first proposals to neutralise the innovation patent – a goal that was eventually fulfilled by the Australian Government’s Productivity Commission (PC), which conducted the other major review and reform of the IP system of the past decade.  The date of execution of the innovation patent system was finally set with the passage of legislation implementing various recommendations of the PC in February 2020

Patent-eligibility of contentious subject matter – most notably computer-implemented inventions and genetic technologies – was also a major recurring theme of the past decade.  IP Australia led the charge against certain categories of software-based inventions in Australia, with successes in cases such as Research Affiliates and RPL Central.  However, it found itself on the other side of history in relation to ‘gene patents’ when, with the Commissioner of Patents having long-defended IP Australia’s practice of granting claims to isolated genetic sequences, the High Court ultimately declared many such claims invalid in its D’Arcy v Myriad Genetics ruling of 2015.

One seemingly innocuous change introduced by the Raising the Bar reforms was the ability, for the first time, for patent attorney firms to incorporate.  There was no reason to suppose, at the time, that there would be anything especially controversial about this.  Incorporated law firms had been around for years, and some – such as Slater & Gordon (ASX:SGH) and Shine Lawyers (ASX:SHJ) – had even become publicly-listed companies.  But bless the Australian patent attorney profession for embarking on a bold experiment of public listings, acquisitions, mergers, and group ownership!  In not-entirely-unrelated news, in 2016 I quit my job at Watermark – a firm that, sadly, no longer exists, following the hostile takeover of Xenith IP Group Limited (formerly ASX:XIP) by IPH Limited (ASX:IPH), and subsequent decision to ‘integrate’ the Watermark business into Griffith Hack.

Unfortunately, there was one area in which I observed no significant change over the course of the decade.  Innovation policy in Australia continued to wax and wane with changes in leadership.  Australians businesses continued, by and large, to lack sophistication in relation to IP, and to have a poor appreciation of the value of IP, corresponding with a decline in per capita patent filings.  Small and medium enterprises (SMEs), in particular, are still mostly failing to identify, manage and protect their IP assets.  I maintain that the challenging domestic market that results from these failures is a significant contributor to the upheavals that have occurred in the patent attorney profession.

But it has not been a decade of purely serious and earnest analysis and reporting.  From time to time it has also been fun and, to be honest, occasionally a little silly (see, e.g., White House in Disappointing Death Star Rebuff).

Yes, It Was a Worthwhile Experience!

So, ten years, thousands of hours of work, and 830 posts on from where I started, has it all been worth it?  Absolutely it has!  Patentology has opened up numerous opportunities that would never have been available to me had I remained just another patent attorney diligently, but quietly, working away in my own little niche of the profession.  Aside from being quoted in the media and appearing on radio – which was fascinating, and great fun – I doubt that I would have been asked to work on the CCH Patents Commentary, to teach in the Patent Practice course at the University of Melbourne, or had articles published, participated on panels, or spoken at various events to which I have been invited over the past decade, without the benefit of the profile that this blog has provided.  I have been able to work with IP Australia, both formally and informally, on its public data releases.  And I have had a voice in discussions, debates, consultations, and reform processes, that would not have been heard as loudly without the amplification of Patentology.  In every respect, my professional life has been enriched by blogging.

Patentology also provides a record for posterity.  I have never deleted content, once published, regardless of how good or bad, right or wrong, it might have turned out to be (although I have occasionally had to clarify or correct the record).  And it will all live on long after I am gone, and even if there is nobody left to care – since 2012 Patentology has been archived by the National Library of Australia.

Looking back again today at that very first article, as naïve as it was, I was pleasantly surprised to find that I wrote this:

Patent law is an instrument of economic policy, and as such must necessarily be set down in legislation crafted by the government of the day in order to satisfy rational policy objectives.  It is understandable that governments do not wish to leave the development of such laws entirely in the hands of the courts, and other decision-making bodies.  But even so, the tendency to try to fine-tune every element of the legislation is counterproductive, in that it complicates rather than simplifies the law for those who use it.  Furthermore, experience suggests that more extensive and detailed legislation creates more, rather than fewer, potential areas of legal dispute and uncertainty.

It seems unlikely that we will see shorter and simpler patent legislation any time soon, given that the trend is, if anything, in the opposite direction.

After a decade in which we saw multiple rounds of significant reforms to Australian intellectual property laws, and the Patents Act 1990 now running to 219 pages (up from 169 in 2010), this feels just as true to me now as it did ten years ago.

I am not sure if I will still be doing this in another ten years, but I have no plans to stop so long as there are still people reading.  My thanks to everyone who has browsed, subscribed, followed, clicked, commented, or just lurked around from time-to-time over the past decade.  Patentology would not be here without you.


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