Decentralising the Patent System
This paper offers a substantive re-think of the modern patent system. It proposes a major architectural change and discusses several organizational changes. The architectural change involves implementing a ‘blockchained’ patent system; that is, a patent system exploiting distributed ledger technologies (DLTs). Such a system would offer two main advantages over the current system: it would offer more flexibility in policy implementation, which the legislator could leverage to improve the functioning of the patent system, and it would provide the opportunity for third parties to plug easily into the system. Organizational changes pursue two main objectives: increasing public engagement with the patent system and addressing some of its common criticisms.
Patent offices, or other trusted institutions, would host the nodes of a public, permissioned, distributed ledger. All events occurring in the life of a patent would be registered as instructions in the DLT. These events include the typical steps in the patenting process, such as filing, interacting with examiners, and paying renewal fees. Another category of events relates to smart contracts, which are self-executing sets of instructions that have the potential to greatly facilitate the administration of patents (including the transfer and the licensing of patents) both for patent offices and for patent owners.
The use of a DLT would enable a series of organizational changes. The patent system has come under intense criticism in the past, and numerous scholars have proposed targeted solutions to improve it. However, many of these solutions have gone unheeded due both to the cost of administering them, and the rigidity of the patent system. For instance, prior art bounties submitted by third parties have been proposed as a way of improving the examination process—but maintaining a reward system is rather burdensome. With a DLT-based patent system, the submission of bounties will be associated with smart contracts, and the use of submitted prior art during the examination process would simply execute the contract and automatically reward the submitter. The paper also discusses other changes that are facilitated by a DLT-based system, including contracting out patent examination and adopting a variable secrecy period.
If these proposals are implemented, the role of patent offices would be profoundly changed. In addition to maintaining a permissioned DLT and organising the data, patent offices would accredit and monitor contractors while providing them with mandatory continuing education. Patent offices would still provide examination services; for instance, when patent applications cannot be assigned to contractors, or to offer in-depth examination in the case of a dispute.
Looking ahead, DLTs offer exciting opportunities such as usage-based renewal fees tied to licensing or patent marking information, self-organizing patent pools, or smooth coordination with tax authorities in the context of patent box regimes.
G. de Rassenfosse - Ecole Polytechnique Federale de Lausanne
K. Higham - Ecole Polytechnique Federale de Lausanne