Document Type
Article
Publication Date
2017
ISSN
0897-3393
Publisher
Harvard Law School
Language
en-US
Abstract
Among the most important purposes of patents are to provide clear notice to third parties of the patent's boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.' Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a patent to be a frustrating and fruitless task.
Standardizing the language and format of patents can improve their notice and disclosure functions. Standardization has been discussed at length in many institutional and legal contexts, but has been discussed little in relation to patent content.2 Similarly, while problems arising from the lack of standardization are well documented, practical suggestions for improving standardization have been absent. This Article provides the first comprehensive discussion of patent content standardization.
The Article's key intuition is that standardization can be achieved through a wide variety of mechanisms. In particular, standardization does not need to be mandated by formal rules; rather, it can arise through voluntary informal mechanisms, which provide an easier goal than statutory or regulatory interventions do. This Article also offers strategies for increasing standardization in less tractable patent environments, such as software. 3 Specifically, the Article discusses representational languages, which are already prevalent in software design, though not in resultant patents, as well as the role of standard setting organizations ("SSOs") and other private organizations in encouraging standardization and the increased use of templates. When patent protection is sought in different countries all over the world, typically through the Patent Cooperation Treaty ("PCT") system, the description of the invention in the patent document stays the same. Consequently, greater standardization in the patent document will also result in greater global uniformity in the description of patented inventions.
Standardization relates to private law, the theme of this Symposium, because standardization is fundamentally about solving problems of notice and disclosure, which are needed to facilitate interactions between private parties. Further, this Article advocates for the achievement of standardization at least partially through private mechanisms.
Part II provides background on the economics of standardization and problems with patent notice and disclosure. Part III describes currently existing standardization, and is divided between standardization achieved through mandates or formal mechanisms in Section IIIA, and standardization achieved through voluntary or informal mechanisms in Section III.B. Section III.C is a case study illustrating how a combination of mandates and voluntary mechanisms contributes to standardized units in patents. The case study is followed in Part IV by a discussion of how further standardization can be achieved, although this Article is merely the beginning of efforts towards standardization. Part V concludes.
Recommended Citation
Janet Freilich & Jay P. Kesan,
Towards Patent Standardization
,
in
30
Harvard Journal of Law & Technology
233
(2017).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3961
