When an inventor is granted a patent he enters into a contract with society: In return for a 20-year monopoly on the exploitation of his invention, the patentee is required to provide full details of the invention, and an explanation of how it works.
This information is then made available to the public by the patent office so that others can learn from the invention. The aim, says Wolfgang Pilch, principal director for patent information at The European Patent Office (EPO), is to create a "positive feedback mechanism." As he explains, "The published information helps stimulate new R&D, and so encourages further innovation."
How is this information made available to the public? Historically, it was accessed in the reading room of the issuing patent office. Anyone wanting to establish "the state of the art" in a particular field, therefore, could visit the reading room and peruse relevant patent documents.
But this was a far from satisfactory arrangement. One problem was that not everyone lived within easy reach of their national reading room, or had the time, or the expertise, to spend long hours reviewing hundreds of complex documents.
And while patent offices (PTOs) published regular printed gazettes listing bibliographic details of newly issued patents, the patent documents themselves were sometimes unavailable in the reading room for months, or even years. Moreover, as the number of patents issued began to explode — and were filed in more and more different countries — the access problem worsened.
For entrepreneurs, however, the problem was a good market opportunity, and wily individuals began to collect, translate and aggregate information from the different national patent offices, which they then sold on to other patent offices, to patent attorneys, and to private industry. No one was more successful in this than Monty Hyams, the founder of Derwent Information (now owned by the global information company Thomson Corporation).
Later, as the technology became available, these commercial vendors also began to develop large electronic patent databases, and then sold access to them via proprietary online services like LexisNexis (now owned by Reed Elsevier), Dialog (now owned by Thomson), Questel, and STN International. And to help patent searchers pinpoint relevant patents from the ever growing haystack, they developed sophisticated classification and indexing systems, and produced abstracts that described the invention in layman's language.
In short, distributing public domain information turned out to be a very lucrative business, and access to patent databases was soon attracting premium rates.
When the Internet became widely available in the mid-1990s, however, patent offices began to distribute this information online themselves, a development that led to growing conflict between the PTOs and commercial vendors, as the latter faced a classic distinermediation dilemma.
Nowhere has this conflict been more visible than in the increasingly bitter debate over the actions of the EPO, which decided not to restrict itself to distributing its own patent data, but information from other patent offices too. Consequently, today the EPO's online service — esp@cent — contains around 63,000,000 patent records, and 50 million images of patent documents.
Even more controversially, the EPO began to provide value added services too.
The EPO maintains that it is justified in doing this, since it has a duty make patent data available. As Pilch puts, "It is my sincere belief that the patent offices have an obligation to serve the public and to ensure that information on patents is readily available to all."
Vendors, however, argue that PTOs should confine themselves to providing data from patents filed in their own jurisdiction. Moreover, they add, this should be just the raw data. It is, they insist, the task of commercial vendors to aggregate the data from different offices, and to provide any value-added services.
The tension between the EPO and commercial vendors today is palpable. Speaking to me recently (but stressing that he was talking in a personal capacity only) Peter Vanderheyden, vice president of global intellectual property at LexisNexis, said, "I'm sure they [the EPO] feel they have an economic responsibility that is better fulfilled by providing access to 'all' government patent data (including value added data and analytic tools for that matter), but I think their argument is weak given that there are more than a sufficient number of private players willing and actively providing this information to the public today."
Who is right?
On the one hand, one could argue (as Vanderheyden does) that if the PTOs interfere too much in the market then innovation in new patent information distribution methods, and tools to mine and analyse the data, will be chilled. Vendors also argue that we could end up in a situation where a handful of state organisations had a monopoly on the distribution of patent information.
On the other hand, one could argue that by lobbying against the activities of the EPO vendors are seeking to restrict the accessibility of public information, since if the PTOs were confined to providing raw patent data alone only those who could afford access to proprietary online services would be able to obtain it in a user-friendly and comprehensible manner. Moreover, critics might argue, vendors are doing so solely in order to protect their own proprietary interests, and what some might feel are outdated business models.
Intrigued by the debate last week I conducted an interview with the EPO's Wolfgang Pilch, which I am publishing today as a downloadable PDF file.
Those who follow the debate about Open Access to the scholarly literature may find some interesting parallels.
If you wish to read the interview with Wolfgang Pilch please click on the link below. I am publishing it under a Creative Commons licence, so you are free to copy and distribute it as you wish, so long as you credit me as the author, do not alter or transform the text, and do not use it for any commercial purpose.
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To read the interview (as a PDF file) click here.