Earlier this year, Aistemos launched the Open Register of Patent Ownership (ORoPO). Their earlier report “Who owns the world’s patents?” summarised their arguments in support of this open-access solution; namely, that with an increased demand for trading in IP rights, information on ownership of those rights has increased in importance.
Information specialists have known for decades that patent ownership data are unreliable. The basic fault lies in the approach to ownership enshrined in national law and, up to now, the attitude of some in the legal profession towards public domain records. I well remember conversations with patent attorneys over many years who, when asked why they did not seem to be concerned that national patent registers were out-of-date and unreliable, would often respond along the lines of “If I’m making a bid for the company, I find out all that under due diligence – so why bother with public records?”. The idea that anyone other than a legitimate bidder might wish to establish an accurate record of the contents of a patent portfolio was not even on their radar.
The grant of a patent confers a powerful right upon its owner – and I believe that with rights, come responsibilities. Unfortunately, unlike other assets owners (land, houses, even cars) who are often required, on pain of criminal or civil penalty, to ensure that accurate ownership data are submitted to a central registry, intellectual property rights are currently treated more like a consumer product. Once allocated to an initial owner, there is no obligation to record onward sales or transfer of these rights. I have never thought that this lax approach was defensible; hopefully, it seems as if others have come to a similar conclusion, albeit via a different motivation.
Aistemos has rightly pointed out that patent owners will often cite cost, administrative burden or both, as reasons why they do not supply updated information to official national registers in a timely manner. Should this argument be taken seriously? Is it so unreasonable to expect that those in possession of IP assets must be responsible to wider society to ensure that their ownership is transparent? This is not just an issue for potential purchasers or licensees of the assets – it strikes to the heart of every freedom-to-operate search being conducted every day in industry, where one company is making an honest attempt to identify and to respect the legitimate, valid rights of others. Compared with the costs of obtaining and maintaining patent protection, and the prospect of revenue from the exploitation of the patent, the cost of supplying accurate, up-to-date ownership data to the countries in whose economies you intend to operate is relatively small. Aistemos’s report cites an upper estimate of £100 per family member. On that basis, a patent family protecting your invention in Argentina, Australia, Brazil, Canada, China, France, Germany , India, Indonesia, Italy, Japan, South Korea, Mexico, the Netherlands, Russia, Saudi Arabia, South Africa, Turkey, the United Kingdom and the United States (i.e. the nineteen individual states within the G20, plus the Netherlands), giving you access to a market of some 4.4 billion people, can be accurately registered for £2,000. Is this an unreasonable burden? – I don’t believe so.
So I welcome the initiative to bring accurate ownership data up the agenda. In the long term, I tend to the view that reform of the procedures relating to national official registers, coupled with an extension of the kind of technology which we have seen in the EPO’s Federated Register project, is the preferred route towards a truly definitive record. However, in the meantime, the ORoPO solution may succeed in forcing the issue – but only if it demonstrates proof of concept and genuine usability.
Perhaps the biggest challenge facing ORoPO is whether its presence can precipitate a change in the mind-set of the IP community as a whole. It is no help if a putative user of the register calls for greater transparency in ownership data, to benefit their own acquisition efforts, but fails to contribute themselves. They may unknowingly be crippling their own chances of being able to license their patents, because no-one else can find out who owns them. In the same way, the fact that ORoPO has any contributors at all reveals that at least some IP rights holders have (or think that they have) complete records of ownership in-house. My question is :- if that is the case, why have these companies knowingly withheld accurate ownership data from the official registers?