Arina Gorbatyuk (KU Leuven) & Adrián Kovács, “Patent Provisions as a Barrier to Open Innovation? Issues Concerning the Disclosure of Patent Ownership”
Open innovation refers to a trend whereby organizations increasingly rely on access to technologies developed by external parties and increasingly provide access to their own technologies to generate revenues. This trend is manifested in a growing market for patent monetization wherein patent rights are licensed and traded on a previously unprecedented scale. The appropriate functioning of this market relies to a great extent on the notice function of the patent system, which is commonly ascribed to bethe quid pro quo of granting exclusive rights to patent owners. The ability to know in detail the boundaries that define a claimed invention and the parties that hold rights to this invention is undeniably a fundamental prerequisite for any patent transaction to occur. In this paper,we argue that whilst current patent provisions suffice to warrant an adequate disclosure of the identity of the initial patent applicant(s), they provide the public with only limited opportunities to identify and track subsequent changes of ownership. This allows for a level of anonymity concerning patent ownership,which rather than facilitating technology transactions can instead be exploited as a competitive tool to assert patents against parties that already practice the patented technology. We illustrate the universal nature of this issue based on a comparative analysis of thepatentprovisionsof six patent offices with respect tothe recordation of patent ownership changes. Our findings reveal that whilst most patent authorities require parties to file notice when the rights to a patent are assigned, provisions for strictly enforcing the failure to meet this requirement are absent. As a potential improvement to existing patent provisions, we propose four minimal requirements that future initiatives by patent offices should impose to warrant a more adequate, accurate and timely disclosure of patent ownership information.