By Andrew Currier
In a previous post I canvassed the topic of legalese in patent applications, arguing that overly-rigid rules intended to make patents more readable and accessible can actually have the opposite effect. In this post, I want to turn attention to the provisional patent application and how the system could be more accessible by allowing for video provisional patent applications.
Before getting into my proposal, it is important to remember that patents are founded on the principle of an exchange between inventor and the public. The inventor is rewarded with a time-limited monopoly in exchange for an enabling description of how to practice the novel invention. During the term, the patentee enjoys a market exclusivity, while upon expiry, the public enjoys free access to the teaching of the patent. Anyone who has ever experienced purchasing “generic” or “off-patent” pharmaceuticals vs patented pharmaceuticals will have direct experience with this aspect of the patent system.
It is the dual technical-legal purpose of the patent document that leads to the highly specialized language of patents. The provisional patent application is a long-standing mechanism to relax those language requirements, permitting cost effective access to the patent system by permitting a document that focuses purely on technical language rather than legal language.
In a way, though, the loosened requirements for a provisional patent application are only a half-measure towards improving access to the patent system. The provisional patent application still requires a high level of expertise in technical writing, which is itself a highly specialized skill set. Furthermore, the provisional patent application must still “set up” the formal patent application for the appropriate legal language. For this reason, it is probably fair to say that the best provisional patent application is a formal patent application. On the other hand, the relaxed standard for a provisional patent application has turned out to be a very worthwhile risk for many successful patents.
So maybe we can go further? In a world of Instagram, Youtube and TikTok, would it not make sense to allow inventors to submit their provisional patent application disclosure entirely in the form of a video? The strongest argument against video provisionals is the daunting evidentiary exercise to demonstrate that the subsequent formal patent application is properly supported by the video. It may also lead to a flood of “low quality” filings, but these will be filtered at the formalization step. The arguments in favour of video-provisionals should be self-evident: greater accessibility to the patent system and greater encouragement of disclosure of novel inventions. Automated transcription technologies and artificial intelligence can help satisfy the evidentiary burdens. A video provisional is never going to replace the intersubjective counselling offered by a patent attorney during the invention disclosure process, but it could go a long way to incentivizing cash-strapped startups to get into the patent system.
Andrew Currier is a recognized thought leader and provides IP strategy counselling for technology companies across the globe. He can be reached at firstname.lastname@example.org.
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The contents of this article are provided for general information purposes only and do not constitute legal or other professional advice of any kind.