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Inventing the wheel, patenting perpetual motion I: Two centuries are no time at all

In 1870, the English engineer Henry Dircks, a recognized defender of the British patent system, was already astounded to discover the existence in his country of as many as 170 perpetual motion patents granted between 1801 and 1869.

From then on this subject has become a classic when advocating for patent grant procedures which include an in-depth examination.

The United States was the first country to establish this system in 1836, gradually followed by others, not withstanding the technical difficulties characteristic of the epoch. The case of Victorian England was particularly controversial.

In 1864 the Royal Commission alerted to the fact that 25% of the patents granted included no innovation whatsoever and, in 1901, it was shown that innovation was doubtful in 42% of cases.

This finally led to the implementation of the system in 1902. (Moreover, all of this coincided with a worldwide movement, worthy of study, led by the defenders of the free market which literally demolished the Dutch patent system in the XIX century and provoked the rejection of this figure by referendum, in Switzerland, which meant that they had no patent legislation until 1888).

(3) Source SPTO

Two hundred and three years after the first Spanish patent law, a new bill has been proposed for patents including a system by means of which they will only be granted if they successfully pass the examination.

The reality reflected by the data obtained from the “search reports” (known as State of the Art Reports SAR) of Spanish patents is very similar to the predicament of Victorian England.

According to our calculations (1) somewhere around 62% of the “search reports” on directly approved Spanish patents are negative, as they show problems regarding innovation and/or sufficient inventiveness (2).

Although it is also true that the majority of European countries lack a patent grant procedure based solely on examinations (Substantive examination).

But let’s talk about money. Does the lack of this system imply an economic decline? Funnily enough, from an economic point of view, the problem of maintaining a patent grant procedure without examination can be interesting, but it mainly affects the costs of obtaining information, which can be resolved if the party interested in the patent in question provides the resources.

Unfortunately, this hardly solves the problem of what are known as sunk costs. This last important problem is produced “upstream” when the decision is taken to carry out a line of research and the mistake is made of deciding to invest in those already performed by others.

In this case the existence of a patent grant procedure, with or without an examination, is sometimes irrelevant. We shall deal with this in the next article “Inventing the wheel, patenting perpetual motion II: the art of wasting money”

(1) Random sampling of 100 patents published in 2012, 56% show problems regarding innovation and only 6% regarding sufficient inventiveness.

(2) Although it is also true that part of the problem could also be due to the extent of the claims.
(3) Source: Spanish Patent and Trademark Office report OPTI 2012 “IN-DEPTH EXAMINATION OF THE SPANISH PATENT PROCEDURE: PROS AND CONS” (Innovation and Patents Forum) www.oepm.es/…Patentes/FIP_Informe_Examen_de_Fondo.pdf

Benjamín Martínez