The status of IP informatics and the need for full text searching
The IP informatics landscape has undergone significant change in recent years. Some of these changes relate primarily to information technology and the sociological change that advances in this area are bringing about:
- The volume of IP filings has greatly increased, and even more so the volume of data, including data that can be accessed for prior art consideration in Australia from overseas jurisdictions via the Internet.
- Changed expectations about what constitutes acceptable search functionality and performance have arisen from the growth of the Internet and popularity of search engines such as Google, which are simple to use but not very transparent or flexible for user control.
- The capacity of IT systems to store, search and process data has greatly increased.
The latter provides a new window on possibilities that neither national offices nor “value-added” commercial providers have yet realised, to add true value to IP data and metadata.1
Why is this useful and timely? National offices need to consider not only how to handle the volumes of data for proper prior art searches, but how to foster healthy domestic innovation for economic growth.
Formerly, national offices worldwide could consider themselves as independent actors while fulfilling their roles as receiving offices for international patent filings. However, increasingly, international patent harmonisation efforts places pressure on these offices to act uniformly, despite potentially different national agendas. There have been many other changes in the landscape in recent years, related to trade, that in combination with IT and IP factors result in both disadvantages and opportunities for Australian innovation and the Australian economy:
- With the implementation of international trade agreements and growth of multinational business, patent filings from overseas constraining use of inventions in Australia are rising.
- Intellectual property rights in most technology areas no longer cover primarily simple inventions, but form an interlocking thicket of competing and overlapping rights to exclude. For multiple technologies this pattern has given rise to a monopsony, a market situation in which the product or service of several sellers is sought by only one buyer, which if unable to obtain all the necessary licenses is locked out of delivery mechanisms.
- Freedom to innovate and investment in innovation can be increasingly stifled by Fear, Uncertainty and Doubt (FUD) in the age of information, wherever the information is perceived to be potentially incomplete or ambiguous.
- A fee-based or subscription-based patent informatics industry preys upon these fears, and increasingly provides access for the privileged only to “value-added” information. Consolidation in the industry suggests a drive away from performance enhancements, while prices are likely to rise.
We suggest that the provision of a search service, offering not only full text searching of Australian patents but the harmonised datasets of other important jurisdictions, will support Australian economic development.
Much of the cost of developing technology de novo or extending the use of technology in Australia can be economised by uncovering enabling descriptions of technology and shedding light on where this technology can be freely used.
The intent of the enabling description requirement was to provide information on the technology so that it could be used outside the monopoly grant and readily improved. Thus, there is a latent potential in the patent system for prudent legal use of technology that has been described but is not subject to valid claims in a particular jurisdiction.
Where technology has been claimed, good patent informatics can support the discovery of invalidating information such as prior art, possible invent-arounds and invent-beyonds. It is also reasonable to use informatics to encourage wide licensing and delivery of patented technology.
1 For example, in CAMBIA’s Canberra-based Patent Lens IT team, we are working on developments such as links to status information, tutorials, and tools for annotation, for exampling regarding licensing, that may be able to lead users of patent data to more robust conclusions on where the dominant rights are held.