Academic journal article Harvard Journal of Law & Technology

Towards Patent Standardization

Academic journal article Harvard Journal of Law & Technology

Towards Patent Standardization

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION                                       233  II. BACKGROUND                                         235      A. Economics of Standardization                    235      B. Notice                                          237      C. Enablement and Written Description              238 III. PATENT STANDARDIZATION                             240      A. Formal Mandates                                 240         1. Disclosures of Biological Sequences          240         2. Patent Classification Systems                241         3. The Patent Document                          242      B. Voluntary Mechanisms                            242         1. Industry Norms in the Chemical and           242            Life Sciences         2. Informal USPTO Guidance                      245         3. Private Standardization Mechanisms           245      C. The Power of Standardization: A Case Study      245  IV. TOWARDS STANDARDIZATION                            250      A. Previous Work                                   250      B. New Methods                                     251          1. Representational Language in                251             Software Patents          2. Private ordering Mechanisms                 253          3. Increased Use of Templates or Standardized  254             Disclosure Sections   V. CONCLUSION                                         255 

I. INTRODUCTION

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. (1) 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. …

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