Rethinking the role of the patent office from the perspective of responsive regulation

Abstract

Patent offices, especially the world�s largest patent offices, contribute to uncertainty. In 2011 almost 1 million patents were granted around the world, bringing the total number of patents in force to an estimated 7.88 million. The hundreds of thousands of patents that are issued by patent offices every year produce a state of flux in the obligations of third parties in the marketplace. Each new patent generates exclusivity rights and corresponding obligations. Trade in these patents through assignment and licensing intensifies the flux. This flux generates uncertainty. The uncertainty has two basic sources. A company making product X cannot be sure that it has found all the patents relevant to product X in all the jurisdictions in which it is operating (completeness uncertainty) and, where it has found relevant patents, there are likely to be, at least for some patents, interpretive uncertainties � what does the patent cover and what does it not? Would the patent be upheld by a court? It is not only granted patents that are a source of uncertainty. Published patent applications also contribute (more than 2 million applications were filed worldwide in 2011).