Wednesday, 25 May 2016

Patents for development, disclosures, enablement and access

Patents for Development: Improved Patent Information Disclosure and Access for Incremental Innovation is a new book by  Dr Nefissa Chakroun (Centre for Commercial Law Studies, Queen Mary, University of London and a Senior Public Service Counsellor.  It's the latest in a sequence of increasingly adventurous books from Anglo-American company Edward Elgar Publishing, seeking to explore new angles on intellectual property law, practice and economics.

According to this book's web-blurb:
This book investigates whether it is possible to execute the disclosed technologies just by reading the patent application. Nefissa Chakroun argues that while TRIPS Agreement obliges inventors to disclose full and complete disclosure, patent information users lack the capacity to fully utilise such information for their economic development. 
The book offers a critical analysis of the disclosure requirements of the patent system as well as an in-depth examination of the ways in accessing and retrieving patent information. Chakroun articulates proposals for strengthening the disclosure and methods for enhancing retrieval and exploitation of the technological knowledge, including an integrated policy on how patent information could be better utilised for development.
Whether it is possible to execute the disclosed technologies just by reading the patent application is a question that was firmly answered in the negative getting on for half a century ago in light of Algeria's experience following independence from France.  The emergent former colony found itself in possession of a complete set of French patent records, but was quite unable to put them to industrial use and commercial advantage (see F. A. Sviridov, The Role of Patent Information in the Transfer of Technology, Pergamon 1981).  The difficulties of putting technologies into practice run further than that: Afro-IP reported in 2009 that some 10% of laboratory equipment had never even been assembled, for want of know-how on the ground, according to Algeria's Director General of Scientific Research and Technology Development.

This question is however ripe for a revisit.  Patent disclosure requirements, both in legal terms and in relation to the demands made by increasingly well-trained examiners, have come a long way since Sviridov's time. Further, both the internet and ever-growing levels of general knowledge have done much to supplement the absence of technical information for which no disclosure is required. Finally, the World Intellectual Property Organization and a number of leading regional and national patent-granting authorities have recognised and proactively addressed the need for more and better use to be made of patented information, both during the course of a patent's life and after the patent's entry to the public domain.

The author ends with a 16-page set of conclusions which are by no means as radical as the patent establishment might fear. They include such very sensible proposals as encouraging the adoption of a harmonised set of terminologies relating to patent information, the recognition of a right of access to patent information and the enhancement of skills associated with the exploitation of patent-related information.  While a higher level of enabling disclosure is predictably prescribed, this should be set at the level of whether the intended enablement imposes an undue burden on persons skilled in the art.  'Best mode' disclosure is excluded from the proposed package of reforms.

All in all, this is an interesting, well argued and intelligently argued book, details of which can be accessed here.

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