Are Patent Offices Being Inundated with Low-Quality AI-Generated ‘Slopplications’?

‘AI slop’, defined as ‘low-quality content created by generative AI, often containing errors, and not requested by the user’, was named Word of the Year for 2025 by the Macquarie Dictionary.  Replace ‘content’ with ‘applications’, and ‘user’ with ‘patent office’ – let’s call them ‘AI slopplications’ – and we would have a good definition of a phenomenon that I suspect is occurring at offices around the world.  In the first 10 months of 2025 (i.e. up until the end of October) the number of provisional applications filed at IP Australia by self-represented applicants was up by a whopping 174% over the previous five years’ average! The overwhelming majority of self-filed applications (98.6%) originate in Australia (i.e. have at least one Australian-resident applicant).

The number of self-filed standard patent applications has also increased, being 82% higher in the first 10 months of 2025 compared with the previous five years’ average.  However, the number of standard patent filings by self-represented applicants remains a small proportion of the total – just 2.6% of all applications filed up until the end of October – and so the significance and impact of this increase remains to be seen.

The only plausible explanation I can think of for this sudden jump in filings by self-represented applicants after years of relative stability in numbers is the increasingly widespread and affordable availability of generative AI.  What is not yet apparent is how applicants are using AI.  Are they using ChatGPT and similar tools to assist in drafting patent specifications describing inventions made wholly by human inventors?  Or are they also using AI to facilitate invention itself?

Either way, I fear that this will not end well for many of these self-filers.  To be clear, there is absolutely no question that AI tools based on large language models (LLMs) can be used to assist in drafting patent specifications.  In the hands of an experienced patent professional who understands the invention to be protected, the full legal requirements for protection, and the various national and international drafting principles, even a general-purpose tool such as OpenAI’s ChatGPT, Anthropic’s Claude, or Google’s Gemini can accelerate the process of preparing a quality patent specification.  But there are also many potential pitfalls to using these tools, and they do not embody the significant expertise, skill and experience of a competent patent professional.  And if the AI is also contributing to the invention, then there may be nothing that is legally protectable at all!

The good news for Australian patent attorneys is that the increase in DIY (with AI) provisional applications has not been accompanied by a corresponding decrease in applicants engaging professional assistance.  The number of provisional applications filed via registered attorneys and firms for the first 10 months of 2025 is down by just 3.2% on the past five years’ average.  And while this does reflect an ongoing decline over recent years, it indicates that the use of AI may be bringing new users to the patent system, rather than taking work from professional advisors.

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Tags: Artificial intelligence, Australia, Large Language Models, Patent analytics, Patent drafting, Patent Office, Patents and society, Provisional applications

Chinese Applicants Are Bypassing Local Patent Attorneys to Obtain Australian Standard Patents

According to IP Australia records, somewhere in this unprepossessing block of apartments in suburban Canberra is the Australian ‘office’ of not one, but at least 47 Chinese companies, which collectively filed 164 standard patent applications between the beginning of January and the end of April, 2019 (link to Google Sheet with full listing).  In each case, it further appears that expedited examination of the application was requested at filing.  A number of the applications have already been accepted.  In some cases, examination reports have been issued, and responses filed.  These have generally been of high quality and, but for formalities in a couple of instances, have resulted in acceptance of the applications concerned.  In no case, however, has any registered trans-Tasman patent attorney been involved.  Purportedly, each response letter has been signed by an inventor on behalf of the applicant company, i.e. presumably their employer.  The actual occupant of the Canberra address is a mystery – unnamed on any application, and seemingly uninvolved other than to assist the applicants in meeting the requirement, under regulation 22.10 of the Patents Regulations 1991 to provide an ‘address for service’ in Australia or New Zealand.

Unusual Australian patent filing behaviour by Chinese companies is nothing new.  I first wrote about the phenomenon of Chinese companies obtaining relatively large numbers of Australian innovation patents back in February 2013, a practice that – notwithstanding some limited efforts by the Patent Office to curb abuse of the system – continues largely unabated to this day.  I recently estimated that around a quarter of all innovation patent applications filed in 2018 were made by Chinese applicants (upon further analysis, I would probably now revise that number upwards, closer to one third).  It is widely believed that this behaviour is motivated by direct financial incentives provided by Chinese authorities to companies that obtain foreign patents.  In this context, the Australian innovation patent has the advantages of being cheap to apply for, fast to issue, and providing an official ‘patent certificate’ upon grant that can, presumably, be used for the purposes of claiming the Chinese government hand-outs.

These latest applications are something different, however.  First and foremost, they are for standard patents, for which no certificate will issue until and unless the applications pass substantive examination (and the opposition period).  They all claim priority from earlier Chinese national patent applications which were, in most cases, filed only shortly before the corresponding Australian applications (and certainly well within the 12-month period allowed under the Paris Convention).  And, as I have already noted, it appears that expedited examination has been requested in each case, with the applicants having a genuine intention of securing a granted Australian patent, even where objections have been raised by the examiner.

In short, these Chinese applicants are not looking merely to obtain an official patent certificate by any means available, at the lowest possible cost.  Rather, they are seeking enforceable patent rights, and in doing so they are willing to incur the additional costs of examination fees, acceptance fees, and dealing with any examination objections that may arise.

Even so, these companies do not appear to be willing to incur the costs associated with engaging Australian patent attorneys to assist them in applying for or obtaining patents.  This naturally raises the question of whether this is a problem for the applicants, for the occupant of that Canberra apartment, or for anybody else who might be involved in these filings?

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Tags: China, Patent attorney profession, Patent filing, Patents and society, Public policy

The Most Prolific Inventors of the Past 25 Years, and the Connections Between Them

“No man is an Island, entire of itself; every man is a piece of the Continent, a part of the main...” – John Donne, Meditation XVII

A simple analysis of inventor data from the US Patent and Trade Marks Office (USPTO) records reveals something interesting but, upon reflection, unsurprising: invention does not happen in a vacuum. Prolific inventors tend to be associated with other prolific inventors, and/or with prolifically inventive organisations.  Of the ten people who have received the most US patents over the past 25 years, there are four ‘pairs’ of inventors who have worked closely together over an extended period, and one who works for IBM – a company that recently topped the list of US patent recipients for the 24^th consecutive year.  And, while the final member of the top 10 is not partnered with any other famously prolific inventor or company, he has at least one co-inventor on around half of his granted patents, where the same names of family and associates keep cropping up.

Two Australians make the list.  Indeed, the most prolific recipient of US patents over the last quarter century is Australian Kia Silverbrook.  The other Australian in the top 10, at number five, is Paul Lapstun, who has worked with Silverbrook for many years.  Japan’s top inventor, Shunpei Yamazaki comes in at number two, with his colleague at Yamazaki’s company Semiconductor Energy Laboratory (SEL), Jun Koyama, at number four.  Long time collaborators, and now senior inventors at Intellectual Ventures, Rod Hyde and Lowell Wood sit at numbers three and six respectively. 

Two members of the list, Apple’s Jony Ive (10) and Bartley Andre (seven), make the grade primarily on the basis of their large numbers of design patents, while Kangguo Cheng comes in at number eight on the basis of his work at IBM Research.

The tenth member of the top ten, coming in at number nine, is Donald E Weder, who is inventor or co-inventor on a mix of utility and design patents relating primarily to floristry.  Even though Weder is not paired with any other member of the top 10, or associated with a famous corporation like IBM, he is nonetheless a collaborator like all the other, sharing the inventing credits with up to 11 others on some of his patents.

All of this serves to confirm that the popular image of the lone inventor, toiling away in isolation in a laboratory or garage somewhere, is a complete myth.  Innovation mostly happens where the conditions are right, and that means having a supportive environment, including teams of innovative people who can work together and bounce ideas off one another in the course of creating something new.  Indeed, over 3,600 patents attributed to the top 10 inventors have two members of the list as co-inventors.

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Tags: Innovation, Inventors, Patents and society, Public policy

I Don’t Care How ‘Efficient’ It Is, It’s Still Infringement!

On 23 October 2015, New York Times op-ed columnist Joe Nocera published a piece entitled The Patent Troll Smokescreen, in which he wrote that ‘according to Robert Taylor, a patent lawyer who has represented the National Venture Capital Association, a new phrase has emerged in Silicon Valley: “efficient infringing.”’

In fact, as we shall see, the term ‘efficient infringing’ is not new – it first emerged in 1998 – and, furthermore, there have been ‘efficient infringers’ outside the realm of patents for much longer than this.  Indeed, I personally know people who have indulged in a little efficient infringements, and maybe you do too.

As one everyday example of efficient infringing, consider an office-worker in an area with limited free on-street parking, restricted to a maximum stay of one hour.  If the local paid parking garage charges $12 per day, and the fine for exceeding the maximum on-street parking time is $120, it does not take an Einstein to work out that it is cheaper overall to park on the street every day if the average frequency with which parking inspectors patrol the area is less than once every 10 business days.  That is efficient infringement!  There are, no doubt, other areas of everyday experience in which a similar analysis can be applied, e.g. payment of fares on public transport.

In some cases – such as the trouble-plagued electronic transport ticketing system in Victoria, Australia – well-advised efficient infringers may be able to tip the scales further in their favour by challenging the validity of their fines.

Of course, for most people this economic rationale cannot be taken too far.  For example, stealing your groceries rather than paying for them might well pay off in the long term from a purely financial perspective, but is liable to land you with a criminal record and possible jail-time.  Efficient infringement, as an economic strategy, is effective only when the worst consequences of getting caught can themselves be expressed in purely economic terms.

Efficient patent infringement is just the same.  As described by Nocera:

That’s the relatively new practice of using a technology that infringes on someone’s patent, while ignoring the patent holder entirely. And when the patent holder discovers the infringement and seeks recompense, the infringer responds by challenging the patent’s validity.

I object less to the practice of so-called ‘efficient’ patent infringement, at least in some of its more benign forms, than I do to the terminology itself, and the way it is being used by some very powerful organisations.  And here is why.

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Tags: Economics, Infringement, Litigation, Patents and society, Public policy

Australia’s Productivity Commission to Examine ‘IP Arrangements’, but Hands Will Be Tied on Patents

The Australian Government has directed its Productivity Commission to undertake a 12 month public enquiry into the intellectual property system, including its effect ‘on investment, competition, trade, innovation and consumer welfare.’

The enquiry has been established in response to Recommendation 6 of the Competition Policy Review (a.k.a. the ‘Harper Review’) which issued its final report on 31 March this year.  The Harper Review’s recommendation stated, in relevant part, that:

The Australian Government should task the Productivity Commission to undertake an overarching review of intellectual property. …

The review should focus on: competition policy issues in intellectual property arising from new developments in technology and markets; and the principles underpinning the inclusion of intellectual property provisions in international trade agreements.

The Terms of Reference for the Productivity Commission Review into Intellectual Property Arrangements require the Commission to:

1. examine the effect of the scope and duration of protection afforded by Australia's intellectual property system on
   1. research and innovation, including freedom to build on existing innovation
   2. access to and cost of goods and services
   3. competition, trade and investment;
2. recommend changes to the current system that would improve the overall wellbeing of Australian society, which take account of Australia's international trade obligations.

The review will look at all aspects of Australia’s intellectual property system, including patent, trade mark, registered design and copyright laws and regulations.  I anticipate that copyright, in particular, will receive close scrutiny.  There are a number of aspects of Australian copyright law – including the treatment of unpublished and ‘orphan’ works, as well as issues relating to technology-neutrality – where substantive reforms may be both desirable and feasible.

Of course, my primary interest is in the patent system.  And here, in particular, the Productivity Commission will find that its hands are largely tied by Australia’s commitments under long-standing international agreements.  Options such as targeting local innovators for preferential treatment,  reducing the term of patents, limiting the scope of patentable subject matter and restricting the rights of patent-holders are all substantially off-the-table as a result of Australia’s existing international obligations.  In any case, none of these things would solve the real problem, which is the lack of an effective innovation ecosystem in Australia which can support the development of new home-grown technologies, and assist Australian innovators to take them to the world.

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Tags: Australia, Economics, Patents and society, Public policy, Reviews

2014 in Review, and How My Predictions Panned Out

Another year over and (although I know everyone says it) this one really has just flown by!

On 1 January 2014 I posted a review of 2013, and a look ahead to what was then the upcoming year.  In doing so, I made a number of predictions, so it is now interesting to look back and see how I went, as well as reviewing the major events of 2014 that I may not have foreseen.

Overall, I think that I did pretty well, considering how unpredictable courts, governments and litigants can sometimes be!  The biggest disappointment for me in 2014 was the Research Affiliates case – not so much because Research Affiliates was unsuccessful, which was always a reasonably probable outcome, but because the judgment itself took so long, and still failed to provide much meaningful clarification of the law relating to patent-eligibility of software and business methods.  Unfortunately, there will be no further appeal, and no prospect of the High Court reviewing the work of the Full Federal Court.

Read on for a full rundown of how my predictions for 2014 panned out.

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Tags: News, Patent law, Patent litigation, Patentology admin, Patents and society

Women Inventors and their Inventions

Today, 8 March, is International Women’s Day, and all of March it is Womens' History Month.

It seems to me that when people think of inventors, they mostly think of men.  And when they think of inventions, they mostly think of inventions made by men.  There are some obvious real-life examples, like the Wright brothers and the airplane, Alexander Graham Bell and the telephone, Guglielmo Marconi – or, alternatively, the equally male Nikola Tesla – and radio, or Thomas Edison and the light bulb (amongst many others). 

Of course, these men made genuinely significant contributions to science, technology and industry.  But they are often the beneficiaries of ‘great man’ narratives, in which they are imagined as lone geniuses striding across the technological landscape of history, rather than fairly ingenious people building on the work of many others before and beside them.  This notion is compounded in fictional books, films and TV series, where the ‘visionary’ (or ‘mad’, as the case may be) scientist is almost always portrayed as male.

Women inventors thus suffer twice.  First, their achievements tend to be downplayed in the historical record, and they are rarely accorded the same credit that a ‘great man’ would receive for the same contribution.  Women’s stories are far more likely to focus on collaboration, cooperation and teamwork, due to a historical and cultural bias in the way we view agency of women versus men.  Second, these same biases are played out in fictional accounts of scientific and technological innovation.  H G Wells did not write about The Invisible Woman, we have Ironman, not Ironwoman, and a version of Back to the Future featuring a Dr Emma Brown is impossible to imagine!

So, in celebration of International Women’s Day, here are a few of my favourite inventions made by women, and their inventors.  This list is, of course, not intended to be exhaustive or anything other than personal.  I would love it if you would add your own picks in the comments!

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Tags: Inventions, Inventors, Patents and society

Australia Scores Highly In Biased IP Index

Last week, the US Chamber of Commerce’s Global Intellectual Property Center (GIPC) released the second edition of its International IP Index, which it called Charting the Course.

Australia scored pretty well, coming in fifth out of the 25 countries covered by the index, behind only the US, UK, France and Singapore.  However, on closer inspection this is probably not something of which we should be especially proud.  While the GIPC index is touted as a measure of how well each country safeguards IP to ‘propel the creation of jobs, protection of public safety, access to future innovations, and stimulate competition in the global economy’, it might better be described as a measure of how cravenly each country kowtows to the interests of the US enterprises represented by the Chamber of Commerce.

For example, a country can gain points for entering into a free trade agreement, such as the Australia-US FTA, or by providing an extension of term for pharmaceutical patents as compensation for the time taken to obtain regulatory approval.  However, countries were scored down for such infractions as failing to provide ‘adequate’ criminal penalties for IP infringement.

However, Australia’s greatest crime against the GIPC criteria was the introduction of legislation mandating ‘plain-packaging’ (actually, restricted branding, since the packs are far from plain) of tobacco products.  Apparently, this one limitation on trade mark use in Australia sends ‘a chilling message to brand owners interested in selling in the Australian market’, and resulted in a loss of a whole point in the index, which would have placed Australia above Singapore, in fourth place!

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Tags: Australia, Innovation policy, Patents and society, Public policy

Chinese Junk Patents Revisited: 2013 Filings Update

Companies in China are continuing to apply for Australian innovation patents – which are not subject to substantive examination before being granted – in order to take advantage of generous subsidies offered by the Chinese government to small and medium sized enterprises (SMEs) for obtaining foreign patents. 

I previously wrote about this phenomenon last February, after it came to my attention that an unusually large number of innovation patent applications had been filed by Chinese companies in 2012, via a number of agents who appeared to conduct no other Australian patent filing or prosecution work.  I far as I have been able to ascertain, none of these agents employ (or are) registered Australian patent attorneys.  It is unclear whether they have other relevant legal qualifications which would enable them to provide patent filing or acquisition services under the Australian law.

I thought it would be worthwhile to investigate innovation patent filings by Chinese companies in 2013, to see whether the practice was continuing.  I have found that it is, although at a reduced level of activity.  I have identified 110 innovation patent applications filed on behalf of Chinese companies during 2013 which appear most likely to have been obtained primarily in order to receive the government payment, rather than because of any genuine interest in obtain valid, enforceable Australian patent rights.

Some of the agents responsible for ‘Chinese junk patent’ filings in 2012 and earlier are continuing to do so, while others appear to have ceased (or, possibly, may be continuing to operate under other names).

Additionally, I have recently received reports confirming my belief that the purpose of Chinese companies in obtaining innovation patents is to claim financial benefits from the government, and not because of any genuine business interests in Australia.

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Tags: China, Innovation patent, Innovation policy, Patent attorney profession, Patent filing, Patents and society, Public policy

Patents 2013/2014 – A Review and a Preview of the Year Ahead

It can safely be said that the year just passed was a relatively eventful one for the global patent system.  With my particular focus on Australia and New Zealand, I would highlight the commencement of the Raising the Bar reforms in Australia, and the passage (finally!) of the New Zealand Patents Act 2013 as particularly noteworthy developments in this part of the world.  But, of course, the commencement in March of the America Invents Act – bringing to an end the first-to-invent system in that country – was far more significant in the overall scheme of things.

Yet these legislative changes were, in many ways, just the tip of a veritable iceberg of patent-related news in 2013.  The patentability of genetic technology was in the spotlight, with decisions being issued by the Australian Federal Court in February, and by the US Supreme Court in June, in relation to Myriad Genetics’ patents on the BRCA1 gene and associated tests for assessing breast cancer risk in women.  An appeal of the Australian decision (in favour of Myriad’s claims) was heard by a panel of five judges of the Federal Court in August.

In the realm of software and ‘business method’ patents, the Australian Federal Court upheld one Patent Office decision to reject claims on the basis that they were not directed to patent-eligible subject matter, and overturned another.  Both decisions are currently on appeal to a full bench of the court.  In the US, the Court of Appeals for the Federal Circuit completely failed to come to terms with patent-eligibility of software-implemented inventions in the case of CLS Bank v Alice Corporation which is, as a consequence, now on its way to the Supreme Court.

Australia’s High Court confirmed the patent-eligibility of methods of medical treatment, and in particular of methods for treating conditions using known pharmaceutical substances that have not previously been known to be effective for that purpose.  Meanwhile, in India the Supreme Court dealt a blow to ‘Big Pharma’ by declaring Novartis’ cancer drug Glivec/Gleevec to be ineligible for patent protection on the narrow basis that the active ingredient showed no significant improvement in therapeutic efficacy over its predecessor (although it had other beneficial properties).

‘Patent trolls’ were consistently in the news.  And while Congressman Goodlatte was successful in securing House of Representatives support for ‘troll-busting’ reforms in the US, the Australian Federal Court demonstrated how the system in this country is unfriendly to those who would seek to use extortionate tactics to monetise patents.  (And, in June, even Hitler received a threat from a patent troll!)

Late in the year there was a changing of the guard at the highest level within IP Australia, while the USPTO (controversially) continues to operate without the benefit of a permanent Director, despite the announcement in December that former Googler Michelle Lee will commence as Deputy (and Acting) Director this month.

This is a highly selective list, based largely on what I have chosen and managed to cover over the course of the past year.  And 2014 is shaping up to be just as eventful as 2013.

So what do I think we can look forward to over the coming year?  Many things, of which the following is a small but significant sampling.

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Tags: News, Patent law, Patent litigation, Patentology admin, Patents and society

The World of Science and Innovation is No Place for Discrimination

This is, nominally, a blog about patents.  But I like to think that it is a bit more than that – I endeavour, when I can, to write about the role of patent law, practice and policy in a broader social context.  I believe strongly in the importance of discovery and innovation to the prosperity and improvement of individuals, communities, nations and humanity at large, and therefore that the ways in which we encourage and foster these activities are also vitally important.

The universe is full of mysteries, and the world of problems in need of solutions.  OK, so some of those problems – such as how to signal to the user of a touchscreen device that they have reached the end of a scrollable page – are of a decidedly ‘first world’ nature (though they are nonetheless important to the prosperity of innovative companies).  However there are other challenges – such as how best to bring the benefits of pharmaceutical innovations to populations in the developing world – which genuinely test the limits of our resolve to apply human ingenuity for the benefit of all.

It is, I believe, self-evident that the more people we have involved in the entire process of innovation – in basic research, in development, in commercialisation, in policy-making, and so forth – the more progress will be made.  It is, therefore, utterly unacceptable for anybody to be excluded from the endeavour, or discriminated against, on the basis of gender, skin colour, age, sexuality, or any other irrelevant consideration.  This is, of course, equally true in all fields of human endeavour, but I think we are entitled to expect that those built on a rational scientific foundation, and populated substantially by the privileged and highly-educated, should be leading the way in this regard.

Which is why I count myself among the large number of people who have been rightly outraged by the treatment of Scientific American blogger DNLee in recent days.  Indeed, she experienced two successive acts of discrimination: firstly by some low-life blog editor at Biology-Online.org, who called her a ‘whore’ because she had the temerity to say ‘no’ to providing them with free content; and then again by Scientific American itself, which removed her post reporting on the incident on the spurious basis that Scientific American ‘is a publication for discovering science’ and that ‘the post was not appropriate for this area’.

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Tags: Patents and society, Personal, Public policy

A Conversation with the Commissioner of Patents (Part 3)

In the first of this series of articles documenting my recent conversation with the Australian Commissioner of Patents, and Deputy Director General of IP Australia, Fatima Beattie, we learned a bit about her about her background as a chemical engineer working with steel, about how she came to the role of Commissioner, and about what the job involves on a day-to-day basis. 

In the second part of the interview, we spoke about the law reform process – what has already been achieved through the Raising the Bar amendments, the further reforms which are currently ongoing, and the opportunities for future reform.

In this third, and final, part of the discussion we speak about the patent-eligibility of contentious subject matter such as computer-implemented inventions, business processes, and genetic materials, as well as the challenges facing the patent system over the coming years.

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Tags: Business processes, Computer programs, Fatima Beattie, Genetic technology, Interview, Patentable subject matter, Patents and society

EFF Off the Mark With Latest ‘Abuse’ Allegations

The Electronic Frontier Foundation’s (EFF) Daniel Nazer and Julie Samuels have a tragic tale to tell, which they hope will stir the souls of the online community to action.

In a nutshell, the narrative goes something like this…

Once upon a time, a few innovative, dedicated entrepreneurs started a Little Red Riding Company called Ditto Technologies, Inc, based on the great idea of letting people try on eyeglasses in a virtual environment by using webcam images to build a 3D model of their heads and faces.  Within two years, their hard work in building an appealing product was starting to pay off.  Ditto had received funding to build its business, employ new staff, and continue to improve its product.

But then along came a Big Bad Wolf Company, called 1-800 CONTACTS.  Although the Wolf was already in the business of selling prescription eyewear (i.e. contact lenses) online, it had no product that competed directly with Ditto.  Yet the Wolf had purchased a patent from a ‘defunct company’ which (it alleged) covers Ditto’s virtual try-on service, and was now suing California-based Ditto in the distant Land of Utah.

The cost of litigation (and the possibility of losing) threatens Ditto’s very existence, unless an army of diligent Woodcutters can be rallied to find prior art capable of invalidating the Wolf’s patents!

Poor little Ditto.  But is it possible that there is another side of the story?  One in which the Big Bad Wolf is just misunderstood, and the Little Red Riding Company might be, to some extent, a victim of its own (and its investors’) mistakes?

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Tags: Computer programs, Infringement, Innovation, Innovation policy, Law reform, Patentable subject matter, Patents and society, Public policy, Trolls

The Growth Profession of ‘IP Economist’

The Managing IP blog reported this week on comments made by Professor Sir Robin Jacob in his speech inaugurating the Sir Hugh Laddie Chair in IP Law at University College London.  In particular, Managing IP blogger James Nurton took Sir Robin to task for his criticisms of the increasing role being played by economists in IP policy.

I recently had the privilege of hearing Sir Robin speak at the University of Melbourne, on the topic of 'Patents – is Europe making a mess of things?'  In that talk, he also touched on what he sees as the inappropriate, unnecessary and potentially damaging influence of economists over IP policy in various jurisdictions.

I have to say that I am inclined to similar views.  We are seeing a corresponding rise of economists to positions of influence within the Australian IP system.

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Tags: Economics, Innovation policy, Patent Office, Patents and society, Public policy

How PatentlyApple Harms Patents – Including Apple’s

Up until now I have had an informal, unwritten policy of not critiquing other blogs.  After all, I know as well as anyone just how much hard work goes into maintaining a blog, coming up with ideas for articles, and finding the time and energy to actually write them.  Anybody who does that deserves a certain degree of respect, even if I happen to disagree with everything they say!  After all, everyone is entitled to their opinion.

However, there are opinions, and then there are facts.  And when a widely read blog consistently posts false or misleading information, there is absolutely no good reason not to call them on it.  This is particularly true when that misinformation has the potential to influence views in a matter of significant public interest, such as the debate over the merits (or otherwise) of patents for computer-implemented inventions (please note that I am deliberately avoiding the meaningless term ‘software patents’).

One blog with which I have a huge problem in this regard is PatentlyApple.  For those unfamiliar with the blog, it is an overtly partisan celebration of all things (allegedly and actually) innovative at Apple, Inc.  Occasionally, this involves spiteful attacks on all things (allegedly and actually) imitative at Apple’s competitors, such as Samsung and Microsoft.  However, it is not these matters of opinion or rhetoric with which I have a problem.

My big issue with PatentlyApple is the way in which it consistently misconstrues and misrepresents the content and scope of the patents and applications – of Apple and others – which it purports to explain.  The reason for this is simple – PatentlyApple is not written by a patent attorney.  The fact is that it takes many years of training and experience to interpret a patent specification, and particularly the claims, which are ultimately determinative when it comes to assessing what the patent covers.  And having typically spent a number of illustrated paragraphs purportedly explaining to a large audience what a patent application is all about, PatentlyApple’s disclaimer that it is necessary to read the ‘full text’ of the document to obtain complete details just does not cut it!

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Tags: Apple, Claim construction, Computer programs, Innovation, Microsoft, Patents and society, Samsung

Junk Patents Dumped on Australia as Chinese Subsidies Rorted

A Chinese government scheme providing financial incentives for small and medium sized enterprises, public institutions or scientific research institutions appears to be resulting in abuse of the Australian patent system, and the 'dumping' of numerous low-quality innovation patents on the Australian Register.

These ‘junk’ patents are not being examined or certified.  They therefore represent no more than potential enforceable rights.  Even so, they generate costs to companies operating legitimately in Australia, which may need to obtain advice on the likely scope and validity of these patents in order to avoid possible infringement.  In extreme cases, the existence of junk patents could result in an Australian business choosing not to take the risk of bringing a new product to market, even though the Chinese owner of a patent is not itself offering any products or services in this country.

The new Chinese patent filings, which increased significantly in number after introduction of the Chinese government ‘Measures for the Administration of Special Funds for Subsidizing Foreign Patent Applications’ in April last year, appear mainly to be handled by Australian ‘agents’ who are neither Australian, nor persons authorised under the Australian Patents Act 1990 to apply for or obtain patents on behalf of other parties.

A number of these agents have been operating in Australia for some time, although with the commencement of the Chinese subsidy scheme, business looks to be booming!  One particularly enterprising operator appears to have established two credible-looking business fronts, and has commenced development of a new, and highly professional-looking, web site for one of those businesses.

This phenomenon is already resulting in distortions of Australian patent filing and grant statistics.  I recently reported on the top Australian patent recipients of 2012, and noted that, for the first time, a Chinese company appeared in the top 10.  It turns out that every one of the 97 patents granted to Hengdian Group Linix Motor Co last year is an innovation patent filed by a single dubious agency.

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Tags: China, Innovation policy, Patent attorney profession, Patent filing, Patents and society

Study Shows that Patent Examiners Make a ‘Meaningful Difference’

On 21 November 2012, we attended a seminar in Melbourne presented by Professor Andrew Christie of the Intellectual Property Research Institute of Australia (IPRIA) on the topic of An Empirical Comparison of the Outcome of Patent Examination in the USPTO, the EPO and IP Australia.

While the title may seem dry, Professor Christie provided, as always, an intelligent, engaging and thought provoking presentation (for an earlier example, see Why IP Professionals Must Take ‘Gene Patent’ Opponents Seriously).

IPRIA researchers studied a sample of 494 patent families, on which patents had been granted by all three of the US, European and Australian patent offices in recent years, and for which the main claim of each application was identical in all three offices when originally-filed.  They compared the granted claims with the original claims in each case, to identify whether the examination process had resulted in a ‘meaningful change’ to the scope of the claims.

What the researchers found was that in a majority of cases, across all three patent offices, examination had resulted in the applicant amending its claims in some meaningful way.  This happened most commonly in the USPTO (79% of cases), while the rate of meaningful amendment in the EPO was 68%, and in Australia 57%.  Most of the amendments were what the researchers called ‘integral’ changes, i.e. the narrowing of the main claim by incorporation of additional features or limitations.

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Tags: Australia, Europe, Jurisdiction, Novelty, Obviousness, Patent law, Patents and society, Unity, US

The US ‘Anti-Troll’ SHIELD Act – A Waste of Legislative Effort?

In 1 August 2012 a new bill was introduced into the US House of Representatives with the stated intention of curbing the activities of ‘patent trolls’.

In a fabulous example of acronym contrivance (which perhaps took longer to devise than the content of the the proposed legislation itself) the bill is named the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act.

The SHIELD Act has caused a flurry of excitement amongst the anti-software-patent lobby, not least because it supposedly has bipartisan support – having been co-sponsored by Rep Peter DeFazio (D-OR) and Rep Jason Chaffetz (R-UT) – and because it is explicitly targeted at curbing the enforcement of ‘dubious’ computer software and hardware patents.

The principle of the SHIELD Act is simple: it permits a court to award a full recovery of costs against an unsuccessful litigant asserting a ‘computer hardware or software patent’ in the event that the court determines that the patent holder ‘did not have a reasonable likelihood of succeeding’.

Even more excitement has been caused by the fact that the bill includes definitions of computer hardware and software patents, along with an express statement that nothing in the bill should be construed as amending or interpreting the categories of patent-eligible subject matter defined by 35 USC 101.  This means that Congress will neither endorse nor oppose the patenting of software should the bill be passed.  And while this would maintain the status quo, under which software is patentable in principle, this has not prevented some commentators from placing additional emphasis on the refusal to endorse.

In our view, however, the SHIELD Act is a complete waste of the Congress’ precious time.  While its co-sponsors’ hearts are doubtless in the right place – not to mention that it is playing well in the media, for now – its passage will achieve little of any consequence in terms of change, and may actually be harmful to the innovators and small technology startups it is intended to protect.

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Tags: Law reform, Legislation, Patents and society, Trolls, US

Patent Trolls: As American As Apple Pie?

Whether they are called patent trolls, non-practicing entities, patent assertion entities, invention capitalists, defensive patent accumulators or patent licensing organisations, one thing is for certain – the only place in the world you will find them roaming the courts is the United States of America.

While some commentators have suggested that it is only a matter of time before similar business models are deployed in other jurisdictions, we are not convinced that this is an inevitable – or even very likely – outcome.

We would suggest that there are features of the US patent system in particular, and its legal system in general, which together make it a uniquely profitable environment for patent assertion entities (PAEs – we will use this relatively neutral term throughout this article to avoid the need to distinguish between different business models).  Conversely, the systems in other countries are configured so that turning a profit purely on licensing and litigation is a decidedly marginal business proposition.

But before anybody starts to get too excited about the prospect of slaying the monster trolls with a few well-placed legal reforms in the US, we need to point out that many of the PAE-friendly features of the US system are exactly the same features which many believe have fostered a historical culture of innovation and entrepreneurial spirit among individual inventors and the small businesses that are the backbone of the US economy.  In other words, the very reforms which might actually make a difference to the prevalence or PAE’s would also shift the balance of the system against smaller innovators and in favour of big companies and multinationals.

The major features of the US patent and judicial systems which we see as contributing to the PAE ‘problem’ are discussed in greater detail below.

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Tags: Economics, Innovation policy, Patents and society, Trolls, US

Patentology Cited in Academic Paper on Cost of Patent Trolls

About a month ago we published an article in response to a widely-reported study, conducted by Boston University law researchers James Bessen and Michael Meurer, which concluded that, in 2011, patent ‘trolls’ imposed a $29 billion burden on innovation in the US, and that this is further proof that the patent system is ‘broken’ (see A $29 Billion US Troll-Tax or Just Another Statistical Smokescreen?).

Our interest was piqued by the sheer unbelievability of the quoted cost, and in addition to questioning the plausibility of the conclusion we raised three main criticisms of the assumptions and methodology in the Bessen and Meurer study:

1. there is ‘selection bias’ in the sources of the data used in the study;
2. the study makes no meaningful distinction between different types of non-practicing entity (NPE), and thus fails to distinguish between deadweight costs (which are genuine burden on the economy) and transfer costs (which are not); and
3. the statistical methods and assumptions employed in the study are decidedly opaque, and fail to place any estimate of confidence on the $29 billion figure.

We were therefore very pleased to read a paper entitled Analyzing the Role of Non-Practicing Entities in the Patent System, which was placed up on SSRN in the past week, authored by David L Schwartz of the Chicago-Kent College of Law and Jay P Kesan of the University of Illinois College of Law, which concurs with our criticisms, and even cites the Patentology article (see footnote 4). 

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Tags: Economics, Innovation policy, Patents and society, Trolls