Comments for Time to fix patents, says The Economist, but how?

(Correct version:)
Questions 1 and 2: Patent trolls are « companies that do not invent anything but instead purchase patents and use them to sue big companies with deep pockets » (paidcontent.org). Those trolls just want to use the invention and put a patent on it in order to block other people creating things, which is very bad for the good functioning of society. Back then in 1851 some comprehensive patents were already taken out for the purpose of stopping invention. This will of stopping invention raised since maybe inventors wanted already back then to some extend hide their ideas because they feared that it could get stolen!

IP rights based on the ‘use it to lose it rule’ are trademarks, if you don’t use your trademark for a certain period you can lose the protection of your trademark. This principle is not applied to patent law but could be reinforced. As studies found out: 40- 90 % of the patents are never exploited or licensed by the owners so loosing your right after not using it, is not unreasonable to do. Patents should be given to those who put a lot of effort in the process of making their ideas become reality. In order to make this happen we need to strengthen the non obvious requirement. 

Furthermore, the protection of 20 years is clearly too long, in some fields it makes sense but in other (for instance in technology) not really. Shorten that period of protection is a step in the right direction since we are living in an evolving society, a society that wants to progress and in order to progress you can’t stop innovation.

Since we talked about the ‘trolls’ mentioning the patent privateers is essential since there is a considerable difference between both. The patent privateers are hired by companies in order to follow up on some patent rights, their task is it to provoke infringement litigation. It is similar to the trolls but here the difference is that the company and the patent privateer profit from it.

Question 3: The inter partes review or IPR: by law hedge funds aren’t allowed to bring patent challenges in district court ( where those cases were traditionally discussed). The IPR process provides a forum to hedge to challenge other organizations’s patens, although with lower standards of overturning them( the patents). Those predatory investors challenge the patent just to make money but while they challenge it, a current medical innovation for instance is stopped and this often when it is in its tracks. This system makes it possible for an innovation that got a patent to be re evaluated again, this has as consequences that the inventor is not pleased about the situation. The inventor most probably have spend already years in the lab in order to make this medicine and it also costs a lot.

Question 4:/

Question 5: We agree that apple shouldn’t get a patent on rectangular tablets with rounded corners since this is perfect illustrates how innovations and ideas can be easily blocked. Furthermore there are not a lot of options for other companies to make tablets, if someone would decide after this to ask a patent on rectangular corners, this would basically mean that developing new tablets would become very difficult. The non obvious requirement is stricter in the EU than in the US, so in the EU getting a paten for the round corners of the tablet would be considered as not inventive enough ( too obvious) in order to be patent.

Question 6: Google, has a patent from 1998 on ranking websites in search results by the number of other sites linking to them. In fast-moving industries, governments need to reduce the length of patents. Pharmaceutical firms could live with shorter patents if the regulatory regime would make it possible to bring treatments to market sooner and for less upfront cost.

Question 1. “One aim should be to rout the trolls and blockers”
Over the past years we’ve observed the phenomenon of monetizing patents :
– Patent privateers who negotiate private agreements with companies that hold patents and sell
them to the privateers who will litigate patents in infringement procedure against the operating company’s rivals. It’s an efficient way for a company holding a patent to obtain economic returns while avoiding countersuits against its operations.
– Blockers are another sort of patent trolls, they acquire patents in order to make infringement claims and stifle innovations. 

These are two forms of infringements of patent law because they on the one hand they monetize patents, on the other hand they block the feedback loop of innovations that is supposed to create patents. Patents must be used in order to spread inventions in the market to reward inventiveness but not a speculative tool. 

Another misappropriate way to use patents can be found in the phenomenon of « patent holdups ». The patent holders have a wider bargaining power in the negotiations with implementers. They’re able to extract them exaggerated licensing fees that are higher than the value of the patent. Afterwards, if negotiations fails, the patent holder can obtain an injunction for infringement.
Question 2. Post-Scriptum : The Economist claims that, back in 1851, it had already identified and attacked what is now called “patent trolls” when the magazine wrote: “Comprehensive patents are taken out by some parties, for the purpose of stopping invention, or appropriating the fruits of the inventions of others” (see here). Patent trolling is thus maybe as old as patent law is?
Even if the term “patent troll” was used for the first time in the 1990’s (the origin of the term patent troll has also been variously attributed to Anne Gundelfinger, or Peter Detkin, both counsel for Intel), the patent system has always given rise to tricks and frauds. This kind of behavior is inherent to the system patent system. Patent law indeed stimulates men to take advantage of the system by levying tax, initiate lawsuit to obtain the privileges that the patent system offers. So we don’t have to wait for the word “patent troll” to be invented to see that humans are greedy!
Question 3. “Patents should come with a blunt ‘use it of lose it’ rule”: what does it mean? Is this rule not already embedded in patent law? Do you know other rules in IP law based on the ‘use it or lose it’ rule? How could this rule be reinforced in patent law?
A ‘use it or lose it’ rule means that the inventor that registers a patent must either use it in a product put on the market or license it within a certain period time following registration or, failing that, having his/her patent right expire. This would be an incentive for putting inventions to use, and also a way to prevent abuse, for example from companies that take advantage from those who infringe their non-used patents. Many also consider that this would be more in phase with today’s world where innovations are created and outdated at a high speed.
Another rule in IP law based on the ‘use it or lose it’ rule is the requirement of continued ‘genuine use’ for the unlimited prolongation a Community trade mark. Article 51 of the Community trademark regulation provides for the revocation of Community trade marks that have no been put to use within five years following registration.
In a Forbes article, “Fixing What Ails The U.S. Patent System: A Modest Proposal”, by S. Dietzen and J. Fitzgerald, many ideas are given to reinforce this rule in patent law. For example, shortening patent terms, heighten maintenance fees for maintaining patents beyond their standard term, require patent owners to show evidence that they have productized their invention within a certain period of times in order to keep their patent right, or have higher requirements for the innovative character of an invention seeking to be patented.
Question 4. “The requirement for ideas to be ‘non-obvious’ must be strengthened. Apple should not be granted patents on rectangular tablets with rounded corners“: what do you think of this remark? Is it correct (in the European context)? Did the UK courts validate Apple’s IP right on this aspect of the iPad?
The “non-obvious” requirement or “inventive step” means that patent shall be granted for inventions which involve an inventive step which means that the invention, having regard to the state of the art, must not be obvious to a person skilled in the art. This requirement exists in the European Patent Convention (art. 52 (1) and art. 56), in UK (section 2(2) of the Patents Act of 1977) and in US (35 U.S.C. §103).
Our point of view is that the remark of “The Economist” is correct. Patents, and more specially design patent, should be granted to sufficiently inventive inventions. In the case of Apple, a tablet cannot have millions of different shapes. The fact that a tablet is rectangular with rounded corners shouldn’t be considered as a sufficiently inventive appearance of functional object, and therefore shouldn’t be protected by a design patent.
More restrictive requirements for the grant of a patent would decrease the number of patents granted over “fake inventions” and would counteract the “patent trolls”.
Question 5: “Patents also last too long“: when the pace of innovation is faster, like in the information technology sector, some firms might end up with “monopolies on the building blocks of an industry“. Is it possible, as suggested by The Economist, to “reduce the length of patents” in fast-moving industries? What legal constraints do we have?
According to The Economist, patents last too long. It can be understandable in the pharmaceutical industry because producing a drug can take a very long time but in other sectors, such as the information technology one, there is no such justification. In its article, The Economist says that having such long patents will lead to sort of monopolies of usually 20 years. For example, Google has a patent since 1998 “on ranking websites in search results by the number of other sites linking to them » but nothing justifies such a length.
However, to change the length of patents implies a legal change. Indeed, in 1995, the World Trade Organization adopted the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which provides, in its article 33 that “The term of protection available [for patents] shall not end before the expiration of a period of twenty years counted from the filing date.”. Nevertheless, states can decide to adopt other forms of protection with shorter terms, such as the utility model. There are so possibilities to avoid the bad effects of the 20 years-terms of the patent but they imply a change of habits in the society.

Question 1 and 2 (post-scriptum)
Meaning of a troll and a blocker?
Troll is the name that the patent society gives to those who acquire patent right not to innovate or protect their invention at first but to block the other in litigation and making patent infringement claims. Their official name is « Patent Asserting Entities (PAEs) ». Their final purpose is to earn money without sharing it with other as big company. They don’t product anything themselves. The consequence is that they stifle the innovation, they exclude small players and turns software publishing into the privilege of a few…

Other bad patent guy
The invention submission company: via advertisements they make great promises to inventors but they charge excessive fees and rarely if ever provide useful services.
There exist also the mutant copyright guy that tried the registration of a work of authorship in which copyright protection has expired and is now in the public domain.
Patent hold-up can also be seen as a bad guy patent cause it’s when, during negotiations between a patent holder and an implementer, the patent holder make the ex ante licensing impractical and on the other side he enjoys a larger bargaining power in ex post negotiations. The patent holder will than take the advantage of the implementer’s reduced flexibility and he will opportunistically extract larger licensing fees that may seems as unreasonable. It will particularly occur if the licensing negotiations fails and when the patent holder may obtain an injunction for a patent infringement.
The last bad characters in the patent field that can be analysed is the patent privateers. They’re armed by a powerful sponsor to be able to assault their sponsor’s rivals (as privateer on sea who was a kind of official pirate). They receive patents as weapons and their attack consist in expensive and incessant patent infringement litigation. Their difference with PAEs is that they share their revenues with their companies whose sold them their patents.

Patent trolling is effectively as old as patent law…
The term “Patent trolling” didn’t exist before 1993 but they may effectively have existed in 1851 with the definition of today. There was already patent trolling when some people have the purpose of stopping invention or appropriating the fruits of the invention of others. Perhaps it was done in others way than today, but the purpose was the same.

Question 3
There are three main problems concerning our patent systems:
1) It is indeed very easy to obtain a copyright relative to the level of legal protection that it provides.
2) There is no incentive for the owner of the copyright to place commercially worthless rights in the public domain (thus, the intellectual property landscape contains protected stuff which the owner has no interest to sell).
3) The time of the protection is considered to be far longer than reasonable.
Patent systems are intended to provide for creators to get paid for their creative output and to give guarantees that a third party could not steal their creative work. This works as an economic incentive for those people to be creative.
However, in addition to ensuring that creative people are paid for their output, patent systems lead to abuses, that could be avoided by introducing a « Use it or lose it » provision to patent law:
1) Patents which couldn’t be exploited when first issued wouldn’t resurface ten years later to haunt a completely new technology, that has never been envisioned by the original patent holder. Today, many technology companies get patets on every obscure work they can, not because those patents would be extremely meaningful for the work of the company, but because they might become useful one day. This doesn’t help to advance the state of art, on the contrary, it creates « landmines » for any company trying to develop a new product or technology.
2) Companies would not bother anymore to secure rights to inventions or works which have little commercial value. They would become public domain immediately, where some other artist might use them to make something valuable.
Thus, the owner of the patent would be required to make use of the Intellectual Property. This use could be: selling it or licensing it to third parties, actively working to bring the work on the market, making it available to third parties under a GPL or Creative Commons-type license.
If the owner of the patent fails to make use of it for some period of time, then the patent elapses into the public domain.
The creation of this provision might sound radical, but it already exists in a big area of intellectual property law: trademarks. Disuse is one of the two ways to invalidate a trademark.

Question 4.
Indeed, there are ways for third parties to challenge the validity of a pending patent application or of a granted patent, at the national patent office. These are called opposition proceedings which are administrative proceeding. In the United states patent law, an opposition proceeding is called an inter partes review (35 U.S.C. § 311.- IPR) which replaced recently the so called inter partes reexamination.
On the one hand, IPR process gives a forum to challenge organisation’s patents with a significantly lower standard for overturning them, compared with district court. But on the other hand, this way of proceeding produces far-reaching and severe consequences for biotech firms. It appears that IPR isn’t a real success.
In conclusion the adequate proceedings to challenge patents, in particular concerning patent disputes on FDA-approved medications, will be to the Congress to implement a patent reform legislation which consisted in resolving the problem of predatory investors that occurred during IPR proceedings. They must reaffirm the Hatch-Waxman Act which was clearly a resounding success.

Question 5.
In Belgium, the presumption of validity of a European patent is high because before its grant, the patent is subject to a thorough examination by the European Patent Office, where the examiners will analyse if the patent application contains really a new invention that is inventive and susceptible of industrial application. Quite the opposite, for a Belgian patent obtained through an application before the OPRI, there is only a formal examination that does not include a substantial technical examination , so that Belgian patents can be granted even if they couldn’t be considered as containing a real invention in the sense of the law. A Belgian patent is almost delivered automatically, that’s why it is often called a « rubber stamp patent ».
This has an influence in case of patent litigation, where a patentee wants to stop or prevent a patent infringement. During preliminary injunction proceedings in Belgium, where a request for a provisional injunction is requested, the judge has to analyse the urgency of the case, if the patent is prima facie valid, and if there is prima facie infringement, … The prima facie validity of the patent is a presumption that cannot be easily rebutted before the Belgian judge.
 
Since an important decision from the Belgian Supreme Court of 5th of January 2012, it is considered that when a judge is ruling during preliminary injunction proceedings, after the revocation of a European patent by the Opposition Division of the EPO, because of the suspensive effect of the appeal against this revocation, there is no legal effect on the presumption of prima facie validity of the patent. The patentee can thus continue to rely on the rights conferred by his patent. But in its decision Syral vs. Roquette, the Belgian Supreme Court decided on the 12th of September 2014 that the judge, when he has to analyse the prima facie validity of a patent, has to take into consideration « final judgements of foreign courts invalidating the national part of a European patent » when a patentee wishes to obtain protective measures based on the equivalent Belgian patent.
Source : https://www.lexgo.be/fr/articles/ip-it-telecom/droit-de-la-propriete-intellectuelle/recent-highlights-in-belgian-patent-litigation-is-belgium-aligning-with-its-neighbouring-countries,93508.html

Question 6.
This remark is correct. Apple indeed should never have been granted a patent on their Ipad’s because this is a form of “blocking patent” that prevents other companies from improving similar products in that specific domain. The fact that this patent was granted is even stranger considering that, in 1994, no patent was granted for a similar model designed by Knight-Ridder because that model wasn’t considered as inventive enough.
Concerning the UK courts, Apple has lost its lawsuit against Samsung regarding the similarity between the design of Ipad’s and Samsung tablets. The Court of Appeal considered that the products of Samsung were different enough because of their “lack of simplicity” and the fact that the logo had been put on the front, whereas the logo on Ipad’s is located on the back. However, even though the Court ruled in favour of Samsung, the judges reminded us that “the issue is simply whether the accused design is too close to the registered design according to the tests laid down in the law”, which means that the validity of the patent (and thereby Apple’s IP right on their product) is not questioned by the UK Court of Appeal.
Sources :
1st question : https://uk.pcmag.com/tablets/64923/apple-ipad-patent-please
2nd question : https://www.bbc.com/news/technology-19989750

Question 7.
Reduce the length of patent in our fast-moving industries seems to be an interesting idea in order to reach the goal described by the Economist as to encourage innovation by ensuring an appropriate reward.
Nevertheless, it’s clear in our opinion that it will stay a wishful thinking.
Indeed, the countries all over the world have legal constraints in the framework of granting a patent.
Here, typically, a patent application must include some claims, each of which defining a specific property right.
In other words, attacking the length of the parent is also at the same time attacking the reliability and the solidity of the patent claim due to the lack of time. Specifically, the features of patentability requirements, such as novelty, usefulness and non-obviousness could be put in danger.
At the end of the day, we would have, on the one hand, an easier patent system, faster, but on the other hand, with patents that are possibly no real “patents”.
Consequently, that kind of situation would lead to various conflicts between the patent holder, the concerned countries’s courts but also third parties that want to develop and product the same kind of product.

Corentin Burton, Catherine Lipski, Andreea Pletea, Maxime Vanderhaeghe, Céline Vandermeulen, Scott Vilasco.

COGET Matthieu
PELTZER Arthur

Homework 3 Intellectual Property Law
Mr. Alain Strowel

Trolls: a patent troll is the acquirement of the patent in the sole purpose of launching patent infringement procedures.
1) The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Therefore the application approach is more aligned with the purpose of copyright, as it includes the exclusive right of the author, by giving him the right to file the copyright application, before making the registration fee.
The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government source.
The role of registration is better exemplified through its effective aspect, through which the risk of copy right infringement is considerably lowered.

2) The very concept of trademark places legal registration at its epicentre. Thus, the formalities, such as the deposit of a few copies that come alongside registration are, by definition, compulsory. However, the purpose of copyright registration is to convey a possibility for the author is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, the copyright owner can produce a copy of the work from an official government source The optional facet of copyright registration is here brought forward, justifying the differential treatment.

3) No, subsection 411(a) of the US Copyright Act explicitly says that preregistration or registration of the copyright claim must be made before a civil action for infringement of the copyright can be instituted. This is contrary to Article 5 of the Berne Convention, which says that there shouldn’t be any formalities.

4) I think it is extremely important to strengthen the “non-obvious” characteristic of a patent as it is the only way to fulfil the primary aim of those legislation: get an appropriate reward for the innovation brought and sustain the search of new ideas. By doing so, Apple is doing the exact contrary. Apple actually lost in front of UK Courts against Samsung on appeal of the first decision.

5) Juridically, it wouldn’t be possible to reduce the term to less than 20 years as USC 35 § 154 and in Europe art. 63 (1 and 2) of the European Patent Convention protect this delay. But, off course with a legislative change it would become completely possible.

1) For The Economist, “One aim should be to rout the trolls and blockers”: Can you explain what a troll and a blocker means, possibly by relying on other articles published on IPdigIT (here, here and here)? Are there other ‘bad characters’ in the patent field that are distinguished by scientific literature (a survey on the Internet, for instance on ssrn and on IPdigIT might help you to find those ‘bad patent guys”)?
“Trolls” is kind of a pejorative term to design the Patent Assertion Entities. PAEs get patent portfolios. With those in their possession, they aggressively negociate licenses with firms, threating the firms with an action for patent infringement. They use the threat of a (temporary or permanent) injunction to extort hefty fees in licensing negotiations, or huge settlements from companies they have accused of infringing. Trolls are also sometimes designated as ‘non-practicing entities’ (NPEs). A NPE is a company that owns patents but does not design or manufacture a product or process. NPEs can define various organizations, such as universities, research organisations, technology transfer offices, etc. Not all NPEs do aggressively assert their patents, PAEs are thus a subset of NPEs. The 2013 White House Study shows that some entities which do not produce or manufacture do contribute to innovation. They can play the role of an intermediary by connecting inventors with manufacturers and revealing the hidden value of some technologies, like gold seekers. By closely monitoring the technology developments so as to anticipate the next generation of products and by matching patent holders and patent buyers, those entities can act as efficient “patent brokers”. With that positive side acknowledged, it is very difficult to adopt a law to curb the abusive practices of PAEs without affecting the positive role that some NPEs can play.
The scientific literature distinguishes the privateers from the trolls. The privateers receive patents and their raids take the form of expensive and incessant patent infringement litigation. The subtle difference with patent trolls is that “unlike patent trolls, patent privateers share their revenues with others-the companies whose patents they purchased.”, “the companies who sold them their patents”. “[O]perating companies transfer patents to trolls that have demonstrated a particular talent for “monetizing” patents. The transferring operating company typically maintains a perpetual royalty-free license for itself, and often extends a similar courtesy to business partners. The terms of the deal usually contain a payment schedule that enables the troll to earn more for meeting certain litigation milestones, thereby incentivizing the troll to leverage patents against the operating company’s competitors. The operating company may also maintain a right to a portion of the proceeds.”. “Using privateers is efficient indeed as it allows operating companies to outsource litigation and to avoid a countersuit against their own operations; and if the competitors’ costs are raised in the process, even better!”.
(Sequential innovations are such that one innovation can only be achieved by using the results of another innovation; therefore, if the first innovation does not exist, nor does the second. Ideally, one would like to give some rights to the initial innovator over the subsequent innovations as he/she contributed to make them possible; on the other hand, considering subsequent innovations as infringements to the initial one is likely to undermine later innovators’ incentives to invest. There is thus an inherent contradiction as the larger the rights granted to one innovator, the lower the incentives for the other one… The problem becomes particularly acute when the first innovation is not valuable in itself; that is, it only becomes valuable through the extra value that the subsequent innovation creates. The second innovator can rationally anticipate to be held up: once it has sunk the R&D cost of producing the second innovation, it will be in the first innovator’s best interest to appropriate the total value of the second innovation. Therefore, the second innovator will not be able to recoup its investment and will prefer not to invest. As a consequence, the second innovation will not be produced, and nor will be the first as the first innovator will not be able to appropriate enough value.)
2) Post-Scriptum: The Economist claims that, back in 1851, it had already identified and attacked what is now called “patent trolls” when the magazine wrote: “Comprehensive patents are taken out by some parties, for the purpose of stopping invention, or appropriating the fruits of the inventions of others” (see here). Patent trolling is thus maybe as old as patent law is?
It is as old as the patent law indeed, a leader in The Economist of the 26th July 1891 issue that year thundered that the granting of patents “excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits [and] bestows rewards on the wrong persons.” In perhaps our first reference to what are now called “patent trolls”, we fretted that “Comprehensive patents are taken out by some parties, for the purpose of stopping inventions, or appropriating the fruits of the inventions of others.”.

3) “Patents should come with a blunt ‘use it of lose it’ rule”: what does it mean? Is this rule not already embedded in patent law? Do you know other rules in IP law based on the ‘use it or lose it’ rule? How could this rule be reinforced in patent law?
It means that if you get a patent but you don’t exploit or license it, then you should’nt keep it. Indeed 40% to 90% of the patents are bought by blockers and trolls and go in that “not using zone”. This rule of “use it or lose it” is not embedded, a patent lasts 20 years and it might make sense in the pharmaceutical industry, because to test a drug and bring it to market can take more than a decade. It is not justified in information technology, the time from brain wave to production line, or line of code, is much shorter. When patents lag behind the pace of innovation, firms end up with monopolies on the building-blocks of an industry.
4) “Patents should also be easier to challenge without the expense of a full-blown court case”: aren’t there not already proceedings which permit to challenge and invalidate a patent without having to rely on a ‘full-blown court’ decision? In the U.S., challenging patents without reverting to the courts has been made possible only recently, in order to help IT companies to fight the trolls. Now it seems it has prompted a new practice (described in a Nov. 18, 2015 opinion published in The Washington Post here) involving predators hedge funds taking short positions on the stock of pharmaceutical companies, then challenging the patents on the drugs, just to obtain a rapid fall of the stocks. If this last development is true, what is the conclusion to be drawn concerning the adequate proceedings to challenge patents?
In 2011, a law creates a process called “inter partes review,” or IPR. By law, hedge funds aren’t allowed to bring patent challenges in district court, where these cases have traditionally been decided. But the IPR process gives them a forum to challenge other organizations’ patents with a significantly lower standard for overturning them, compared with district court. The problem with the IPR system as it stands is that it reverses the long-standing presumption that the government’s grant of a patent is valid — their patent will be reevaluated almost as if they’d never had a patent at all.
Patents can be challenged under IPR even if they’ve already been upheld in district court, heretofore the final word in drug patent disputes. And challengers can – and do – file an IPR again and again and again against the same patent.
The adequate procedure to challenge patent could be the IPR for all the tech field but letting the Hatch-Waxman Act rule the challenging of the patent in the biopharma industry.

Away with the patent horror picture show :
1) Patent troll are known as companies that aggressively negotiate licenses to acquire patent portfolios, most of the time with a patent infringement. They are designated as PAES (« patent assertion entities »).
The « privateers » are an example of others « bad patent guys » because the use intellectual property to attack others companies. They most of the time have powerful sponsors and assault their sponsor’s rivals. It can be mistaken with patent trolls but in the facts it’s not the same.
The struggle with PAES is that they actually block inventions that exists, but also new inventions that companies would like to develop, because they have no intention to manufacture the good for which they have registered a patent. It so can be problematic.

How to fix patents ?
1) Trademark rights can be lost through absence of use in connection with the goods for which registered (if during 5 years). It’s the rule of use it or lose it. Trademark can be lost when you don’t use the sign for which they are protected. You have to know for which good you will use the trademark otherwise you will lose it if you don’t use it in a period of 5 years. It is the same principle for trade name. But it’s no any use : you must have a connection with the goods for which registered.
For example, Google are losing their trademark because of the neologism “Googling” which became more and more popular.
When speaking about copyright and patent we can see that they have the same goal : to guarantee that a third party cannon steak an idea (mostly). It so provides a legal protection against the abuses of the system. The « use it or lose it » rule is the solution found against those abuses, because without using it during a certain time, the IP right fall into the public domain. We so encourage creativity and work through it.


2) Not too long ago, the Supreme Court upheld the constitutionality of a procedure that makes it easier to challenge questionable patents, and to avoid prolonged litigation or costly settlements.
The procedure, called Inter partes review, created by Congress in 2011, resembles a trial in federal court, but is conducted by an executive-branch agency.
The U.S. Patent and Trademark Office can reconsider and cancel an already-issued patent based on certain types of “prior art.” This includes existing patents or printed publications showing that the invention wasn’t novel or nonobvious, in whole or in part, before the effective filing date of the patent application. Anyone can petition for such review.
If a review is “instituted,” the petitioner and the patent owner can conduct limited discovery and file affidavits, declarations and written memoranda. The process also allows for an oral hearing before the Patent Trial and Appeal Board (PTAB). The board’s final decision is subject to review by the Federal Circuit Court of Appeals.
The procedure is seen as a potential weapon against patent trolls who obtain patents solely for the purpose of suing alleged infringers for royalties and damages. Accused infringers who seek relief from the PTAB through IPR may be able to avoid court battles or settlements for infringement of questionable patents.
By law, hedge funds aren’t allowed to bring patent challenges in district court, where these cases have traditionally been decided. But the IPR process gives them a forum to challenge other organizations’ patents with a significantly lower standard for overturning them, compared with district court. 
Congress must act to reform the system to ensure that patent disputes are resolved the right way, and that the inter partes review can’t be abused, and get in the way of innovation, through misuse by patent trolls.

3) Presumption that a European patent is valid for the purpose of obtaining a preliminary injunction and seizure proceedings. Unfortunately, invalidity defenses raised by the alleged infringer are very unlikely to succeed. But following recent case law, the validity of patent in preliminary injunction is not so untouchable anymore. For example, in the Netherlands there is no presumption of validity.
Example: Court of Appeal March 15, 2013, Bayer v.Sandoz = “A preliminary injunction prior the invalidity decision in 1st instance proceedings on the merits automatically remains in effect notwithstanding the invalidity of the patent, as long as the 1st instance decision is under appeal”.

Within 9 months of publication of the patent issuance notice in the European patent bulletin, any interested party may file an opposition against the European patent delivered. This opposition must be based on grounds specified by law. The EPO opposition division will examine the reasons for the opposition and will decide to revoke or not the patent.
In Belgium, the presumption of validity is still the starting point. Patentee cannot simply rely on the suspensive effect of the appeal filed against the invalidity decision given by a national court or an administrative body. Belgian judges will have to make an assessment of the validity of a patent invoked in preliminary injunction or seizure proceedings taking into account all facts and circumstances invoked by the parties relating to the validity of the patent. Moreover, foreign judgments have to be taken into account when assessing the prima facie validity of a EU patent.

4) This remark highlights the fact that patents in Europe can, under certain aspects, be considered as « too easy to get ». In a similar way than what is happening in the US, one of the criteria required for an invention to be an eligible subject matter for patent is for the invention to be inventive. Indeed according to art. 52 (1°) European Patent Convention: “European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application”. The issue at stake in the remark corresponding to this answer is that nonobviousness criteria is perhaps too broad in its scope to reach the rationale for patents which is merely to protect technical aspects of inventions. In the case of Apple v. Samsung, depending on the countries where the patent infringement where prosecuted rulings where different. In the UK, Apple lost the case as the judge stated that a “rectangular display screen is totally banal and determinated solely by function” (§104) and therefore couldn’t reach the inventive criteria needed in order to benefit from patent scope of protection.

5) Significant international harmonization of patent term across national laws was provided in the 1990s by the implementation of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights. Article 33 of the TRIPs Agreement provides that the term of protection available [for patents] shall not end before the expiration of a period of twenty years counted from the filing date.
Consequently, in most patent laws nowadays, the term of patent is 20 years from the filing date of the application.
This however does not forbid the states party to the WTO from providing, in their national law, other type of patent-like rights with shorter terms.
In consequence, it would be possible for a country to force certain industries to contract shorter patents in an effort to prevents monopolies and encourage innovation.

Claire Martin, Manuella Buckinx, Marilou Debouche, Trecy De Leener, Elodie Vanderbist

I.P. law exercise for the 5th of December

Group: Lauro Cavallo, Isabel Nauwelaers, Isabelle Jaques, Salomé Gaillet, Valentine Leclercq.

1.1 “One aim should be to rout the trolls and blockers”.
Patent troll means when companies do not invent anything but instead purchase patents and use them to sue big companies with deep pockets. Patent trolls are accused of stifling innovation. Trolls are also designated as “non-practicing entities” as they own a patent but do not design or manufacture a product or process. They ask for heavy fees in exchange for dropping the charges against competitors that would lose way more money in lawsuit defense expenses. Even though their practices are legal, their aim can be morally questioned since the patent system was first created to foster and protect innovation.
Patent privateers is a party, typically a patent assertion entity, authorized by another party, often a technology corporation, to use intellectual property to attack other operating companies. They present the big advantage of allowing companies to assert intellectual property against their competitors with a significantly reduced risk of retaliation and as a means for altering their competitive landscape. Privateers receive patents and raids take the form of expensive and incessant patent infringement litigation. Unlike patent trolls, patent privateers share their revenues with others: the companies who sold them their patents.

1.2. Are there other ‘bad characters’ in the patent field that are distinguished by scientific literature ? 
As well as patent trolls, practicing entities can also put themselves in the way of innovation by attesting they own a patent that covers the idea a rival would have or use.
Disaggregation of complementary patents into different hands can also make the use or the creation of all sort of products and ideas much more difficult. Finally, the phenomenon of sequential innovations (successive invention built in an essential way on its predecessors), is equally a factor that impeaches, discourages innovators to build up on a latter idea by fear of being targeted for infringing patent protection.
NPEs could also be considered as « bad characters » in the patent feild. NPEs or non-practicing entities do not use the patents they own to create anything. They share numerous similarities with patent troll as they often litigate patents that are likely to be at least invalidated. The difference is that not all NPEs are trolls. NPE is a broader and more neutral term that refers to non-operating entities. This notion comprehends a few subcategories such as PAEs (patent assertion entities) which use their patents (only) through litigation and PME which designates patent monetization entities.

2. Patent trolling is thus maybe as old as patent law is?
The first Patent law was granted in Venice in 1421 to Fillippo Gronelesci, architect of the Florence church, patent law has thus existed well before the claim made by the Economist.

3. “Patent should come with a blunt ‘use it or lose it’ rule”.
This rule would mean that the patent would expire if the invention is not brought to the market, or if you don’t protect and enforce sufficiently your intellectual property, then you might lose your right. The rule applies notably to trademarks. Indeed, the article 19 TRIPS reads as such “If use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least 3 years of non-use (…)” (except as otherwise provided). The only way to guarantee their validity is by using it. To reinforce this rule we could shorten the patent protection that is now of 20 years and governments should force the owners of intellectual property to share.

4.1 “Patents should also be easier to challenge without the expense of a full-blown court case”.
In order to be more adequate, the proceeding to challenge patents should ressemble the proceeding system of the Hatch-Waxman Act. That means, be more balanced and tip in favor of the companies that are really innovating and favoring improvement of products. It should facilitate the filling of applications made by companies on new ideas, and make the cost for defending that innovation lower for those defendant companies. A market exclusivity should be awarded to the companies that are proven to have brought a truly new product, or bring a substantiel improvement to an existing product.

4. 2“The burden of proof for overturning a patent in court should be lowered”.
The presumption of validity of the patent : A patent filer simply cannot be aware of all facts and circumstances that may constitute a ground for invalidating his patent after grant. Therefore, patents are granted with a certain presumption of validity that differs from where in the world it is granted.
In the case of a European patent, it is granted after an examination designed to establish whether the European patent application and the invention to which it relates comply with the patentability requirements of the EPC. European patents are granted for inventions that are new, involve an inventive step and are susceptible of industrial application. To insure that that the invention corresponds to those conditions it must be pass a long series of examination procedures. The first is the opportunity for a competitor to challenge a patent application, which arises in the examination proceedings in which the novelty of the idea that it’s inventor would want to be patented is examined and can be challenged. The second stage of it’s validation is the post-grant opposition and appeal procedure before the European Patent Office. Any person may give written reasoned notice to the European Patent Office of opposition to the granted European patent . The opposition applies to the European patent in all Contracting States in which that patent has effect, regardless of ownership in the individual countries. The opposition procedure involves an exchange of briefs and an oral hearing, the appeal procedure is a full review of the case.
.

European patent grant procedure:
I. General survey
II. Procedure up to publication of the application
III. Publication of the European patent application
IV. Examination procedure
V. Opposition procedure
VI. Limitation and revocation procedure
VII. Appeals procedure

The patent grant procedure in front of the OPRI, in Belgium, is simpler and shorter because they are a lot less procedures to follow and the invention will be submitted to a smaller amount of conditions.

Belgian patent grant procedure:
I.Payement of application fees
II. Attribution of a filling date
III. Research of prior art
IV. Issuance and publication of the patent

The main difference between European patent grant and Belgian paten grant is that in front of the OPRI, the search for prior art and the written opinion are not binding and provide no definitive guarantee as to the patent’s validity. Even if the invention is not new or if another condition is not met, a Belgian patent may still be issued for this invention. Even if the patent’s validity is contested in court, the judge’s decision is not restricted by these documents. The definitive validity of the patent will only be decided on a case-by-case basis via legal proceedings. This implies that the European Patent Office will verify whether the conditions of patentability were met and, if not, refuse to issue a patent.
We acknowledged that in the European context, the principle is “foi est due au titre”. That means that there is a presumption of validity when facing preliminary injunctions and prima facie assessment for the patent. Judgements concerning the invalidating of a patent are usually set aside.
The Supreme Court of Belgium deem a European patent valid at first, even though it has been revoked by the Opposition Division of the European Patent Office or by the decision of a court in first instance, at least in the context of preliminary injunctions. (Decision Novartis c Mylan and Lundbeck c Eurogenerics). Indeed, the patent might still be presumed invalid until the final outcome in the invalidity proceedings because of the suspensive effect of the pending appeal.

5. “The requirement for ideas to be ‘non-obvious’ must be strengthened. Apple should not be granted patents on rectangular tablets with rounded corners”.
It is true that it’s easy for Apple to claim rights on obvious objects such as rectangular tablets. The form in itself is not complicated to imagine. But we think what Apple is trying to protect is the design in itself. iPhones and Mac computers have a specific design that is modern and innovating. We think that Apple was the first brand to produce phones on a “rectangular tablets with rounded corners”. Before that, phones didn’t have a touch screen and the design was completely different. Now, every company, such as Samsung, are trying to copy the design that Apple imagined. If the inventor of a Lego brick can have a patent of his innovation, why not Apple?
The UK courts validate Apple’s IP right on this aspect of the iPad.

6. “Patents also last too long”.
Indeed, a patent lasts for 20 years. The article of The Economist describes that a protection for 20 years might be useful in the pharmaceutical industry because the process of making a drug and then bring it to market can take time. But in the information technology sector, the patent’s protection is way too long. We all know that technology is a field where innovations never stop. Therefore, we have some firms that have a monopoly on this field. It would be a possibility to reduce the length of patents in fast-moving industries by creating different classes of patents. Some would be under longer terms (such as the pharmaceutics industry) and other could benefit from more flexible terms and could be shorter.

There are some economists that also propose to reverse the burden of the proof on patent seekers by granting patents only to those capable of proving that:
Their invention has social value
A patent is not likely even more valuable innovations
The innovation would not be cost-effective absent a patent
This way, it will reduce the scope of patents.

1. Patents should come with a blunt “use it or lose it” rule:
The article speaks about this “use it or lose it” rule because studies have shown that forty to ninety percent of patents are never exploited or licensed. Such a rule would therefore prevent useless patents from existing because “trolls”, as called in the article, would lose their right to vindicate the patent. And because the patent system is exclusive, it prevents other people from innovating. Furthermore, such a high percentage of unlicensed or unexploited patents prevents innovation for no good purpose since the patent-holders don’t even innovate themselves.

2. Patents should also be easier to challenge without the expense of a full-blown court case“: aren’t there already proceedings which permit to challenge and invalidate a patent without having to rely on a ‘full-blown court’ decision? In the U.S., challenging patents without reverting to the courts has been made possible only recently, in order to help IT companies to fight the trolls. Now it seems it has prompted a new practice (described in a Nov. 18, 2015 opinion published in The Washington Post here) involving predators hedge funds taking short positions on the stock of pharmaceutical companies, then challenging the patents on the drugs, just to obtain a rapid fall of the stocks. If this last development is true, what is the conclusion to be drawn concerning the adequate proceedings to challenge patents?
If it is true, the adequate proceedings to challenge patents is the one without a ‘full-blown court decision’. Indeed, in addition to the fact that this way of proceedings is perfectly legal, it has some advantages : it is faster, cheaper which is a big advantage for small companies and investors, is a way to reverse the idea that every patent is valid and means that there is an innovation which is not the case with patent trolls and it is a way to avoid the uncertainty of the outcome of the dispute. Of course, there are still problems to be fixed in the system so litigations can be resolved the best way.

3. “The burden of proof for overturning a patent in court should be lowered“: what is the presumption of validity of a European patent? Please compare with the strength of a Belgian patent obtained through an application before the OPRI.
In principle, there exists a presumption that a European patent is prima facie valid for the purpose of obtaining a preliminary injunction and seizure proceedings.
Anyway, in Belgium, the person who apply for a patent is presumed as being its inventor (or being titular of all rights on the material). An important decision : when a photographer sued a tourism office that used his pictures to illustrate its website without permission, The Brussels’ Court of Appeal held in favor of the agency, saying the plaintiffs did not demonstrate that the pictures were of its own. The Court did not try to find out whether the office used the pictures openly and peacefully, but as they used it first in the first place, they were presumed as titular of all intellectual rights over them. In a decision of the 10th of April 2013, the Court of cassation reversed that decision, for insufficient legal basis. We can thus learn that whom use a piece of work peacefully without any ambiguousness is presumed as its owner, until the introduction of a contrary request.

4. “The requirement for ideas to be ‘non-obvious’ must be strengthened. Apple should not be granted patents on rectangular tablets with rounded corners“: what do you think of this remark? “The requirement for ideas to be ‘non-obvious’ must be strengthened. Apple should not be granted patents on rectangular tablets with rounded corners“: what do you think of this remark?
The author is clearly criticizing the number of patents that are obtained for ideas that are not really innovative (for instance, rectangular tablets with rounded corners). Because the requirement for ideas to be “non-obvious” is relatively easily met, companies are able to obtain many patents which is a drag on innovation.
It is slightly different in the European context because instead of “non-obvious” idea, the requirement is the inventiveness which reduces the scale of ideas that can be eligible for patent. In Europe, the invention must have technical features in order to be granted a patent. In addition, in Europe certain objects are not eligible for patents (art. 52 of the European Patent Convention), such exclusions do not exist in the US system.
In a judgment of 2012, the UK court ruled in favor of the tablets Samsung considering that Samsung’s tablets did not infringe a registered design of Apple’s iPad.

5. Patents also last too long“: when the pace of innovation is faster, like in the information technology sector, some firms might end up with “monopolies on the building blocks of an industry“. Is it possible, as suggested by The Economist, to “reduce the length of patents” in fast-moving industries? What legal constraints do we have?
One of the main criticisms of patents is that patents last too long. It might come as a surprise to many, but the patent term is not necessarily always measured by 20 years from the date of the earliest applicable filing date. Protection for 20 years might make sense in some specific fields like the pharmaceutical industry (in order to test all the drugs). But in other fields like technology, it doesn’t take 20 years to figure out how, for example, a software package works. So, when patents lag behind the pace of innovation, firms end up with monopolies on the building-blocks of an industry. The perfect example is Google which has a patent from 1998 on “ranking websites in search results by the number of other sites linking to them”. This is why, in fast-moving industries like ours, governments should gradually reduce the length of patents. Unfortunately, our constraint is that patents aren’t used in their initial purpose which was to encourage researchers to publish their ideas. They function in the name of progress and not innovation.

1. For The Economist, “One aim should be to rout the trolls and blockers”: Can you explain what a troll and a blocker means, possibly by relying on other articles published on IPdigIT (here, here and here)? Are there other ‘bad characters’ in the patent field that are distinguished by scientific literature (a survey on the Internet, for instance on ssrn and on IPdigIT might help you to find those ‘bad patent guys”)?
Following P. Belleflamme, a patent troll (or PAEs – patent assertion entities) is a company that acquires “patents with the primary purpose of making patent infringement claims and, thereby, to stifle innovation” (What to think of ‘patent trolls’?). A. Strowel gives another point of view by stating that “Trolls are small evil creatures from Norse mythology, which often live under bridges and pester travellers for safe passage; similarly PAEs are accused of taking firms by surprise once they have made irreversible investments” (The risk of patent trolls in the U.S. and in Europe: a sequel to a never ending story). In other words, the sole purpose of a patent troll is to earn money from its patents. It has no intention of using the patent for itself. Indeed, the idea isn’t to prevent people from using it. Actually, it is what they want. If people use it, then they will sue for compensation or sometimes, to push people to settle for big amounts in order not to be sued. This is his unique aim. Note, however, that this might seem unethical but there are some proponents who see nothing wrong in such behaviour. Also, it is not only in the USA; there is a possibility that this expands in Europe too.
There are other “bad patent guys”. We can cite the patent privateers that “like their forefathers [in the 16th century] (…) are armed by a powerful sponsor, with the aim of assaulting their sponsor’s rivals” (Beware! Privateers patrol these patent waters). Today, they don’t use ships and guns but patents and raids “take the form of expensive and incessant patent infringement litigation” (idem). Like patent trolls, they don’t manufacture any product but they differ from the trolls because they share revenues with other companies whose sold them the patents. Once again, there are proponents… “Sponsors see nothing wrong in such deals: they are simply looking for the most efficient way to realize a legitimate return on their high and risky investments in intellectual property” (idem).
See also about patent privateers: https://www.forbes.com/sites/timsparapani/2015/09/02/attack-of-the-patent-privateers/#4f13938ef285
Finally, as P. Belleflamme stresses in What is ‘patent holdup’? Should it be regulated? If yes, how?, “[i]n the case of standard-essential patents (SEPs), another form of holdup is the ‘patent ambush’, whereby a participant to a standard development process fails to disclose that it holds (or will hold) a patent that is relevant to the standard and only asserts it once the standard is adopted.”

2. The Economist claims that, back in 1851, it had already identified and attacked what is now called “patent trolls” when the magazine wrote: “Comprehensive patents are taken out by some parties, for the purpose of stopping invention, or appropriating the fruits of the inventions of others” (see here). Patent trolling is thus maybe as old as patent law is?
It’s true to say that the pejorative concept of « Patent trolls » already existed before – in the ideas – as demonstrated by the quote of The Economist mentioned in the question but It wasn’t exactly applied the same way as today, the system of patent trolls wasn’t a so well oiled machine at the time. Indeed there weren’t companies like today that only gain money and achieve their breakeven level by sueing other companies based on the panel of patents that they bought to others, inventors on the market. So today some companies called among others NPE (non-practicing entity) make business on the market without manufacturing their own product, or supplying services.
But diverting the goal of patent seems to ‘ve always been done, perhaps on another scale but it was done 200 years ago and already criticized by some – including member of The Economist -. Humans from the beginning ‘ve a mischievous mind and it’s not just nowadays that people adopted those kind of « unfair » strategy, misappropriating the original goals of patent. In the UK at the time (18th) they wanted to repeal the patent system, there was a huge debate on this topic, some argue that they noticed that patents didn’t assure a better innovation etc… Nevertheless international pressure influenced the process and it was decided to foster and strengthen the system of patent. Unfortunately this action goes hand in hand with the increasing development of those kind of schemes.

3. “Patents should come with a blunt ‘use it of lose it’ rule”: what does it mean? Is this rule not already embedded in patent law? Do you know other rules in IP law based on the ‘use it or lose it’ rule? How could this rule be reinforced in patent law?
‘Use it of lose it’ means that if you don’t use your creation, or your patent to benefit from it and let the others get their chance to use it by giving you some money it’s preferable to lose it for the count of others who would use it and take all it’s advantages. This rule is not really embedded in patent law, when you get this patent you have all the rights on it during twenty years which give you the opportunity to use it or to just keep it in your pocket. No one can force you. Actually it’s what happen with patents trolls, they got some patents on some very specifical elements but they never use it until someone other use their innovation so they use their little shit of paper against him to get some money. Use it or lose it, should be a rule inforced in patent law because that will permit to avoid this problem of Patents troll. How can we do it? Maybe by getting some specifical legislation on it, we can have a certain number of years after wich if you don’t us your innovation you can lose it. And maybe put some conditions.

4. “Patents should also be easier to challenge without the expense of a full-blown court case“: aren’t there not already proceedings which permit to challenge and invalidate a patent without having to rely on a ‘full-blown court’ decision? In the U.S., challenging patents without reverting to the courts has been made possible only recently, in order to help IT companies to fight the trolls. Now it seems it has prompted a new practice (described in a Nov. 18, 2015 opinion published in The Washington Post here) involving predators hedge funds taking short positions on the stock of pharmaceutical companies, then challenging the patents on the drugs, just to obtain a rapid fall of the stocks. If this last development is true, what is the conclusion to be drawn concerning the adequate proceedings to challenge patents?
In drug patent disputes, patents can be challenged under IPR even if they’ve already been upheld in district court. Unfortunately, this procedural aspect lead to a battle for drug companies in which these companies often lose their limited resources by fighting in courts to apply another judgment in their case to allow them to create new patents. This situation contributes actively to a decline of invention rate in which big drug companies generally win. This producer aspect has, for a long time, been criticized and an old system has been brought in which all companies would benefit of bringing more lower-cost generics to the market with recognition of the immense level of funding it takes to develop new drugs. This system is known as the Hatch-Waxman Act. The conclusion to draw concerning the adequate proceeding to challenge patent will depend on the efficiency of the new system the congress is willing to pass the new patent legislation. In practice, this system has shown great availability for new innovation regarding prescription of medication. This system boosts the innovation of new products. Congress must act to reform the system to ensure that patent disputes are resolved the right way by reaffirming that Hatch-Waxman is the sole standard for patent disputes on FDA-approved medications.

5. “The burden of proof for overturning a patent in court should be lowered“: what is the presumption of validity of a European patent? Please compare with the strength of a Belgian patent obtained through an application before the OPRI. (There is some case law of the Belgian Cour de cassation on this).

The patent allows its owner to prohibit any third party to manufacture, sell, offer for sale, use or even hold for the aforementioned purposes the object of the invention in the territories concerned.
In principle, the patent has a validity period of 20 years, from the request, provided that the taxes are regularly paid. In Belgium, there is also a “little patent”, protected for 6 years only.
The right may be assigned or licensed.

To be eligible for protection in Belgium, you must submit either a Belgian patent application to the Belgian Intellectual Property Office or a European patent application (with mention of Belgium) or an international patent application (PCT). (with mention of Belgium), and then be awarded the title, after a procedure whose length varies on average from 18 months (Belgian patent) to 4-5 years (European patent) if all goes well. The patent is published as the relevant data.

How to choose ? Everything depends on the project. The European procedure provides protection in more than 20 countries via a single application. It becomes attractive from 3 countries. The international procedure provides protection in more than 100 countries (including Japan and the United States). The European patent offers great legal certainty because the European Patent Office (based in Munich) carries out serious examinations as to the patentability of the invention, which is not the case, for example, with the Belgian Office.
The procedure to obtain a European patent is certainly more complex and longer than the Belgian procedure, because of the compulsory examination of the substantive conditions of patentability, but it also makes the patent more solid. Among the conditions of patentability, the novelty, the inventiveness, the industrial application and the licit nature of the invention are enumerated.
6. “The requirement for ideas to be ‘non-obvious’ must be strengthened. Apple should not be granted patents on rectangular tablets with rounded corners“: what do you think of this remark? Is it correct (in the European context)? Did the UK courts validate Apple’s IP right on this aspect of the iPad?
I think that this remark is pertinent for some territorial areas like the US, where apple obtained a patent on the 12 November 2012 for a “rectangle with curved corners”, although the title 35 of the USC, article 103, specifically sets obviousness as a condition for non-patentability. So in theory, in the US, the remark should not be pertinent but in practice it might be. This might also be due to the different way in which the US and the EU treat obviousness. The first, like we said above, sets obviousness as a condition for non-patentability, whereas in the EU, article 54 (combined with 56) of the European Patent Convention set non-obviousness as a requirement for patentability. You might think these two dispositions are similar, but the way they are put in practice are completely different and thus, lead to different results, as it is studied in this comprehensive article (https://www.ipwatchdog.com/2016/12/21/patent-quality-european-inventive-step-us-obviousness/id=75860/). As we can then imagine, the economist’s remark is less pertinent in Europe, where no such patents have been granted yet because of the more effective measure of non-obviousness contained in article 54 and 56 of the EPC. To be even more precise, on the 9th of July 2012, it has been said in a judgment of the UK Supreme court deciding whether Samsung’s tablets had infringed Apple’s patent on design, that Samsung’s design was “not as cool” as Apple’s one and that apple was not the first company to invent a rectangle device with rounded corner. This judgment has then been followed by Dutch and German courts in other cases

7. “Patents also last too long“: when the pace of innovation is faster, like in the information technology sector, some firms might end up with “monopolies on the building blocks of an industry“. Is it possible, as suggested by The Economist, to “reduce the length of patents” in fast-moving industries? What legal constraints do we have?
It might be possible, but quite hard concretely. There are several legal constraints, some on a national level and others on an international level. The first legal constraint (broadest one) comes from the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). It’s article 33 provides that “the term of protection available [for patents] shal not end before expiration of a period of twenty years counted from the filing date”. Member states of the WTO are then obligated to have 20 years as term for patents. Which means that if we want to change this minimum, we have to reach an agreement between the 162 members of the WTO to amend the Agreement and that might be quite complicated. Above this, the EU sets the same term for patents, in its European Patent Convetion, article 63 (1). Again, it would mean that changing it would require the 38 parties to agree to an amendment. The only possibility of changing that could be found in the fact that the term set by the TRIPs Agreement does not forbid the states party tot he WTO from providing, in their national law, other types of pantent-like rights with shorter terms. An example of this that exists in some countries is the Utility models, that are usually cheaper and easier to obtain than a patent but their term is shorter (between 6 to 15 years).