On Tuesday 9 June, I attended an IPRIA seminar at which Kimberlee Weatherall (UQ) and Assoc Prof Beth Webster (Melbourne) of IPRIA presented the results of a survey of inventors which attempts to measure the incidence of patent infringement in Australia.
The two part survey (post and phone) used the publicly available record of inventors of patents (applied for between 1986 and 2005). The inventors were asked what had happened to their invention, whether they were aware their invention had been ‘copied’ (this non-technical term was used in the survey rather than ‘infringement’ given the survey participants), what action had been taken in response to any copying and why this action was taken. Why inventors? Webster and Weatherall (W&W) explained that inventors have a personal interest in what becomes of their invention, and that they are less prone to the kind of ‘corporate memory loss’ that bedevils large companies with ownership of IP.
The headline results from the survey were:
· 28% of inventions were subject to copying over their lifetime;
· in 50% of cases where the inventor was aware of copying, a letter to cease was sent; and
· this letter was effective in 4 out of 10 cases (ie copying stopped permanently or a licence was agreed).
Whether these figures indicate that the patent system is effective or not is a matter of perspective, but the quantification of these events is undeniably of interest. W&W readily acknowledge the limitations of an inventor survey in estimating incidence (lack of knowledge of the basis for corporate / legal decisions, non-legal understanding of copying), and as such describe the 28% figure as an ‘upper bound’ of real world infringement.
W&W also enquired into the reasons patent holders pursue or eschew enforcement action. Where the owner did not even send a letter, despite being aware of copying, they found that the leading motives were the cost of such action, the size of the infringer and the infringer being overseas. By far the winner (44% of cases) was cost. Interestingly, fear of the patent being held invalid was not a significant factor.
Read more in the complete discussion paper.
