Impartiality at the Patent Office

Abstract

AbstractSocial contract is one of the most common schemes for justifying patents. According to this theory, inventors obtain a commercial exclusivity in exchange for the disclosure of the invention, with the final aim of allowing others to use that knowledge in future innovations. Under the rationale of this social contract theory of patents, if a patent system is not guided by impartiality in its decisions, the relation between disclosure of inventions and future innovation becomes an issue, because non-merit factors in patent examination influence the quality of the knowledge disclosed. The aim of this article is to analyse impartiality in patent systems and, by doing so, defend that there is an epistemic side on both impartiality and social contract theory.Keywords: Impartialitypatentsinnovationvalues AcknowledgmentsThis project has been funded with support from the Spanish Government (FPU Program. Reference: FPU19/03734). It has also received funding from the research project “Los condicionantes del cambio tecnológico en España, 1950–2000: formación e investigación” (Grant number: PID2021-128653NB-I00), by the Spanish Ministry of Science. I would also like to thank Ana Cuevas, Santiago M. López, Mar Cebrián, Bralind Kiri, Mariano Martín-Villuendas and the Spanish Patents and Trademark Office.Ethics approval and consent to participateInformed consent was obtained from all individual participants included in the study. Approval was granted by the Ethics Committee of University of Salamanca (25/03/2021. No 588).Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Since both granted patents and rejected applications are usually published, lack of impartiality affects situations in which States do publish technological information, but in a way that does not promote innovations.2 A clear reference to the examiners in this vein appears in the European Patent Office’s Guidelines for Examination: “(they) may not take part in the decision on a case: (i) in which they may have any personal interest (partiality for subjective reasons) or (ii) in respect of which the party may have good reasons to suspect partiality (partiality for objective reasons)” (European Patent Office, Citation2022, Part E, Chapter XI).3 Above all, it would be opportune to relate them to the quality of the patent systems. We can hypothesize that the behaviour of these examiners affects the overall quality of patent systems, as evidenced by the existence of low-quality patents or patents that are never exploited in some systems. This leads to fewer repercussions than expected.4 In Spanish, “puertas giratorias,” which is the literal translation of the expression.5 This comes without prejudice to the importance of vocation and duty. Furthermore, independence from political power is also a crucial feature (as pointed out by Wilson, Citation1887).6 Literally, “Person Having Ordinary Skill in the Art,” the legal fiction that stablishes the reference for determining whether an invention is obvious or not.7 Many scholars have recently undermined the possibilities of impartiality by emphasizing the importance of deliberation, stakeholder involvement (Triantafillou, Citation2015) and citizen participation (Schmidthuber et al., Citation2019) in all phases of the policymaking process. These proposals must find their way in patent systems as well.