IP, ethics, and tech: hard times ahead
Ubiquitous IP is fast becoming a problem. A new patent application is made every 10 seconds—more than 3.4 million in 2020. A new trademark registered every 2 seconds—more than 16 million in 2020. And there are more than 6 million active patents at any one time.
The vast majority of these come from China, USA, Japan, Korea and Germany. There were even 22,000 (cultivated) plant varieties registered in 2020.
It has now become possible to entirely independently and with no knowledge whatsoever that IP exists around what an inventor believes is novel, to submit a patent that infringes upon another simply because the ‘other’ patent has been maintained but not been exploited to any great extent and appears invisible in freedom to operate (FTO) and prior art searches.
Traditionally infringement of these would have been policed manually, using long and arduous desk research and a goodly deal of infringement would have gone unnoticed, many would be none-the-wiser that, for example, their patent created and registered in Europe and the US was being infringed by a small company in Midwest America.
Only sizeable companies with great attention to the details of their IP portfolio might ever find these sorts of infringements; it costs a great deal of hard-won cash to police a sizeable portfolio, in fact it costs a lot to police IP full stop.
In this digital age, where we can access extreme search technologies, powered by machine learning and massive datasets access, costs have reduced massively, but the scale of the problem has become instantly recognisable.
Even the smartest AI-driven search systems are not yet at the stage where they can discern similarities and differences in IP sufficiently well to find truly similar IP for further investigation and they produce mountains of similar but not infringing results that have to be manually sorted and inspected.
Often times this just isn’t worth pursuing, but how do you know if it’s worth pursuing or not? What’s the balance of costs against potential lost income?
How does this affect future FTO and detail in FTO searches? How do we really know that our patent is novel?
Is there a potential growing business in finding obscure patent infringement and ‘ambulance chasing’ on a no-win, no-fee basis or otherwise?
