Dangers of two-tier patent system

Plans to fast-track patent applications could encourage an unfair, two-tier system, intellectual property (IP) experts claim.

Their comments follow the launch of a public consultation on proposals to introduce fast-track processing services for patent and trade mark applications. The consultation is being led by the UK Intellectual Property Office (UK-IPO) and takes forward proposals made in the Gowers Review of Intellectual Property.

Osborne Clarke’s head of IP, Theo Savvides, says any steps towards a more efficient system are welcome, but he has reservations about the proposals.
“The UK-IPO is already a very efficient (and good value) registry. Applicants can often expect to obtain a trade mark registration in just six months, should no objections or oppositions be encountered.

“I would not necessarily advise a client to spend an extra £300 in fees (and doubtless an extra set of trade mark attorney’s fees) to fast-track their application that, in reality, would only speed matters up by a few weeks.”
A fast-track system is already in place for patent applications at no extra cost to applicants, but it has not been particularly successful, he says.

“I would query whether by introducing a fee-based fast-track system we would be condoning a two-tier patent regime. After all, damages for infringement are only recoverable from the date of publication, meaning that a larger, corporate patentee with more money to spend would potentially be recovering damages quicker than an individual or start-up.”

Savvides believes this could discriminate against individuals and small- and medium-sized enterprises, which are the kind of applicants the UK-IPO should be encouraging to use its services.

“I would also like to see the UK-IPO providing an assurance that that ‘standard track’ will not, in time, turn into the ‘slow-track’ as fast-track patents could conceivably push standard applications further and further to the bottom of the pile,” he adds.

The consultation is at www.ipo.gov.uk and runs until 14 December 2007.