Junk Patents
In order to implement conscientiously National Intellectual Property Strategy, the task of amending the present Chinese Patent Law is underway, while that how to solve the problem of "junk patents" has grabbed the public attention.
What is so called "junk patents"? Up to now, there is no legal standard and precise definition upon it. While a common explaining is that it refers in particular to those patents which have no commercial value and can not contribute to economic growth. The reason of that is various: we can analyze them from both investigators and applicants' perspectives. In china, the authority of taking charge of examination of patent application is State Intellectual Property Office (SIPO). From their perspective, for saving cost and other resources, they have to carry out formal examination on applications, which lead to many unqualified applications passing the examination. From the applicants' perspective, there are some incentives pushing them applying junk patents. One of those is that some professors and researchers need the patent for conferment of academic titles or applying more research funds. Another is that many local governments, just for the purpose of political achievement or image, provide economic incentives for businesses and individuals that are active in applying for patents, such as welfare or preferential policy. The last incentive is that some experienced or sophisticated companies can litigate a malicious prosecution based on their applied "junk patent", reaching the goal of harming their rivalry.
As a legislator, you must know on which problem you should take great effort and optimize your tactics under the present resource constrain. In this case someone advice that the State Intellectual Property Office should carry out substantial examination instead of formal examination towards the application for curbing the junk patent. In my point of view, it is not necessary to change the method of examination. First, substantial examination will make huge costs of assets and manpower, which may be millions times compared current spending. Secondly, as the competent authority of patent, it has no liability to regulate individual's activities and incentives. No matter researchers applying patents for fund and businesses, or individuals applying patents for their economic interest, both of them are not the matter that SIPO should care, just as the Chinese famous saying goes , "Let every man skin his own skunk."
From the analysis above we can see that preventing malicious prosecution brought by "junk patent" is the key point of "junk patent" problem. One way is to clear the standard of malice and impose heavier penalty on malicious prosecution. Increasing the cost of junk patents and malicious prosecution reduces the probability of malicious prosecution to a certain extent. Another way is to increase efficiency of formal examination. Formal examination does not mean no examination, which is also an important way to curb junk patent, especially to written description or disclosure the applicant submit. For example, if the disclosure is so vague that the applicant can stretch the patent to cover a large number of patents in the future, we have good reason to suspect the incentive of applicant and can require him to supply another application document. I think the skilled prior review also gives help for controlling the junk patent.
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