South Africa: Patents – Weird And Wonderful!

Last Updated: 4 October 2019
Article by Hugo Biermann
Most Read Contributor in South Africa, September 2019

A recent article entitled Why Are There So Many Weird Tech Patents? by Rose Eveleth has an interesting take on patents. It suggests that the conventional wisdom behind the patent system is only half the story. The conventional wisdom, of course, goes something like this:

The patent system is a reward-and-stimulus model that grants innovative people a time-limited monopoly to inventions. It’s in all of our interest to have such a system. It benefits the inventor, who has the opportunity not only to recoup their investment but also to profit handsomely from it. It also benefits society as a whole, especially when the patent falls into the public domain.

There’s a distinctly quirky aspect to the article, with mention of some truly weird and wonderful patents: a lie-detecting throat tattoo, a delivery blimp, a flying warehouse, an underwater warehouse, a self-destructing drone, a drone tunnel. Perhaps unsurprisingly, Amazon filed quite a few of these applications.

The article makes some interesting points:

People are actually watching patents

Because trade marks and copyright often involve celebrities and household brands, it’s these areas of IP law that tend to attract the greatest public interest. When it came to patents, the author suggests that for many years “nobody was looking”. But that’s changing. As she says, “journalists are using patents as a window into a company’s psyche, and not always in a way that makes these companies look good”.

Patents can be speculative

Because the patent system is all about getting in as early as possible, it’s not unusual for a company to file a patent application before it even knows whether it will actually have any use for the invention. Big companies with deep pockets often file patent applications for a number of new ideas, in the expectation that they may actually only run with one or two of them.

Patents can be defensive

Companies often file patent applications for purely defensive purposes. In other words, simply to make sure that a competitor doesn’t use the technology. The article makes the interesting point that in some cases a company will file or keep pursuing a patent application, notwithstanding the fact that the team that came up with the technology may have been disbanded and the whole business idea scrapped.

Size matters

The author tells us that “companies love to boast about the number of patents they have, as if it’s some kind of quantitative measure of brilliance”. The suggestion is that when it comes to commercial negotiations between companies (take-overs, mergers) there’s not a great deal of analysis of the patents, simply a number count.

There’s strategy involved

This may come as a surprise, but companies don’t always patent their most important inventions. The reason – they don’t always have full faith in the system. There’s this quote from Elon Musk, explaining why, despite the fact that his company has many patents, it hasn’t filed any patents relating to SpaceX:

“Our primary long-term competition is in China. If we published patents, it would be farcical, because the Chinese would just use them as a recipe book.”

Patent lawyers often need to be really creative

Patenting often involves considerable creativity, with patent lawyers needing to “dress up science fiction with words like ‘means for processing’ or ‘data storage device’”. Sometimes even needing to devise “prophetic examples” about how the patent might work!

There can be abuse

Companies that are issued vague patents can, and sometimes do, go after other companies and try to extract money from them: “It’s like beating your competitor over the head with a piece of science fiction you wrote.”

What this article does is throw a welcome spotlight on some of the thought processes behind patenting. There are, of course, many reasons why a company might want to patent its technology. The most obvious one is that it wants to ensure that it has a monopoly, in other words that it has the sole right to use the technology. It might be that the company doesn’t yet know where the field of technology is heading, but wants to be prepared for all eventualities – the company might then file numerous applications and eventually proceed with the most viable one. Or the company might be thinking defensively, and it might be trying to create a thicket of patents that makes life difficult for its competitors.

It’s also quite possible that the company may see the patent in purely commercial terms. As something that can be licensed to third parties, thereby creating revenue streams. As something that can be sold. As something that increases the value of the company. As something that simply gives the company some value or advantage over competitors.

From a South African perspective, the fact that there is currently no substantive patent examination also opens up the door for possible “abuse”. For instance, a big, multinational corporation can register a large number of patents in South Africa on a highly desirable or life changing technology, without having to “prove” to the South African Patent Office that the inventions are worthy of patent protection, just to pose a barrier to entry to smaller players. This may restrict access to the technology by making it prohibitively expensive. It can be difficult for a smaller company to challenge these patents, as it might not have the deep pockets required for patent litigation. However, this issue will hopefully be addressed by the impending amendments to the South African patent laws and regulations which will see the reintroduction of substantive patent examination.

The article also shines a spotlight on some of the reasons why patents might be abandoned. It might be because of bad publicity or unwanted media attention, perhaps as a result of the nature of the invention itself – examples might include technology that might be considered creepy or invasive. It might even be because of a change of direction on the part of the company, for example a decision to go open source.

In conclusion, it is clear that there is immense value in patents. What is important, is that this value should be extracted using a patenting strategy that is aligned with the commercial strategy of the company.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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