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Never mind the quality?, Journal of Intellectual Property Law & Practice, Volume 4, Issue 2, February 2009, Page 73, https://doi.org/10.1093/jiplp/jpn250
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Unregistered IP rights are protected and enjoyed on a non-judgmental basis. Thus, in copyright law the poorly taken holiday photos, the jarring doggerel of the aspiring laureate, the infantile daubings of the Picasso manqué—all are accorded equal protection under the law, irrespective of their inherent quality or commercial value, so long as they satisfy the minimal qualification of lying within a protected category of work. Trade secrets and know-how too enjoy protection against wrongful disclosure or use by virtue principally of the fact that they are not generally available, rather than as a recognition of their commercial value or social utility.
Once the requirement of registration is established, however, and unless the sole purpose of the registration is to establish priority of rights, a greater interest is taken in the quality of the work in which the right resides. Thus trade marks may be examined for their inherent or acquired ability to enable consumers to tell competitors' goods apart, for their lack of deceptiveness and for other quality-related criteria. Plant varieties will be searched for signs that the variety itself is stable and reproducible. But nowhere is there a more rigorous examination of the quality of the subject matter of an IP right than in the case of the patent.
Before a patent is granted, an examination is made in terms of its form (does it claim an invention?), its context (is it for something that the law recognizes as patentable subject matter?), and its content (is it new, non-obvious, and industrially applicable?). The examination is not merely cursory but takes the form of a rigorous consideration of the prior art and its relation to the invention as claimed. The patent application is published so that others may pass comment or, in some jurisdictions of which India is the most significant, oppose its grant. The patent as ultimately granted is often substantially amended over its initial version, taking into account the objections of examiners, the territory staked out by competitors, reappraisals of the prior art, and the continued evolution of the commercial sector in which the granted patent will be worked.
One might imagine that, once an application for patent protection has been so carefully crafted, it would be of high quality. Yet around the corridors of patent reform, there echo the angry voices of those who call for ‘quality patents’. If only we had better patents, they clamour, everything would be all right.
A moment's reflection suggests that, while everyone is in favour of quality patents, there is no consensus as to what that term means.
To the patent examiner, a quality patent is one that can be efficiently and properly processed because it is constructed within the rules of the system. It meets all the formal administrative criteria; claims and description are in order; there is no attempt to conceal prior art—especially that of the applicant—and no fraud on the patent office. This sort of quality may look sterile and bureaucratic to the business community, but time consumed in dealing with formal deficiencies is time destroyed that might be better deployed on other elements of the patent grant.
To the business, manufacturing, and service sectors, a quality patent is one that discloses a serious invention that teaches a relevant art and warns of what happens to the party that transgresses the scope of its claims. It is not a patent for doing, by computer means, what everyone has been doing for years without a computer; it is not a patent that, by constant amendment, has shaped itself around industrial practices that developed after its filing date; and it is not a patent for a broad or ambiguous scientific principle that cannot be clearly seen to be relevant to industrial practice at all. This is the sort of quality that justifies the system in the first place, but is unclear whether the price paid for the protection of such meritorious inventions is the protection of the less meritorious too, since there is no convenient measure by which the good and the bad can be separated during the grant process.
To the investment and securitization community, a quality patent is one that can be relied on to generate an income stream from licensing or through enforcement against infringers. This sort of quality is the hardest to achieve, since even the best-examined patent can be invalidated by a single piece of subsequently unearthed prior art or by the ex post facto opinion of a judge that the subject of the invention would have been obvious to the person skilled in the art maybe a decade or more earlier.
So before we press for quality patents, let us first agree on what we have in mind when we press our case.