Why the current patent system doesn’t work for tech

‘Does the idea of a 20-year patent term still match the pace of technological and commercial development?’

In 1965 co-founder of Intel Gordon E. Moore proposed his famous law that the number of transistors on integrated circuits doubles about every two years. Moore’s law continues to hold true today and there are parallels across a wide range of technologies. With such an exponential increase in the development of technology, can the patent system keep up?

Since the 1970s, we have seen successive technical revolutions in fields such as organic chemistry, biotechnology, nanotechnology, information technology and now artificial intelligence. Lawmakers have responded to some of the legal, ethical and policy issues that these raise, for example with the 1998 European Union directive on the legal protection of biotechnological inventions or the development of case law to accommodate the increasing importance of data processing across all technical fields.

It is not only the law that needs to adapt. New fields of technology require patent attorneys with the scientific skill to understand and protect them. Combining science and law in the role of a patent attorney has in the past been a unique opportunity for scientists with a broad skillset, but the options for such people are also increasing.

New skills needed for patent attorneys as tech sector moves so fast

Competition for graduates with the required combination of technical capability and linguistic skill that make a good patent attorney has increased as tech companies provide exciting opportunities that go way beyond the traditional research and development team. If we are to continue to provide strong legal protection for the fruits of technological development it is important that the patent attorney career remains attractive to the brightest and the best.

The term of a patent is 20 years from the date it is filed. The mighty Google was less than one year old 20 years ago. Does the idea of a 20-year patent term still match the pace of technological and commercial development? Patent owners decide each year whether to pay the annual renewal fee to keep their patent in force. According to data from the UK Intellectual Property Office, the payment of renewal fees peaks at ten years into the life of UK patents, which suggests that after ten years some patents start to lose their relevance to the business.

However, in fields such as pharmaceuticals, the time and investment required to develop a drug that is safe and approved for marketing can still require the full term of a patent to achieve the exclusivity and return that makes such development commercially viable. Across different fields of technology there is no one-size-fits-all patent strategy. Ten years is still a long time in technology; Twitter is only 12 years old.

Patent system is keeping up, but only for now

Increasingly, products have become more complex. The ubiquitous mobile phone includes components developed and supplied by a range of often competing technology companies that combine to provide the powerful functionality we have come to expect. Patents can actually help foster such co-operation by clearly demarking the technology of each contributor; good fences make good neighbours.

For telecommunications standards, such as Bluetooth and 4G, patent owners declare their “standard-essential” patents to the group to receive a return for their technological contribution, while maintaining a service that will operate across the devices of all providers.  Patent strategies like this have developed to accommodate increased technological complexity.

It took 75 years for the total number of granted US patents to reach one million in 1911. By 1991 the number had risen to five million. US patent 10,000,000 was issued in 2018, only 27 years later. It seems the rate of patenting is also increasing exponentially. The patent system is keeping up, at least for now.