Thursday, November 26, 2020

Why is the PH IPO killing patents?


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THE old saw about, “When there’s smoke, there’s fire” more often than not turns out to be true, and unless several responsible parties can provide a specific, painfully detailed explanation of what is happening, that certainly appears to be the case at the Philippine Intellectual Property Office (IPO). Something is very wrong here, and bit by bit, a story of greed and underhanded behavior of almost gothic proportions is slowly emerging.

It begins with the story of one Filipino inventor’s tribulations in obtaining a patent here for a process called “Social media live electronic governance and agile advisory for five-pattern goals achievement process.” The process can be applied in a variety of negotiation settings, and has already had one commercial application, the redesign of the instrument panel in certain brands of cars, notably Chevrolet, to accommodate Apple devices for the installation of the Apple CarPlay application.

The US Patent Office was suitably impressed by this to grant the invention a patent in May 2016, including the necessary certification and priority designation under international treaties to facilitate the application for a patent in another country. The inventor quite naturally sought to obtain a patent in April 2017 here, in her home country, and that’s when things started to go awry.

Given the presentation of the same documentation used to obtain a US patent, plus the additional bona fides from the US Patent Office, the patent application and grant here should have been a formality, and quickly processed. Under international treaties – the two that apply here are the Paris Convention for the Protection of Intellectual Property and the Patent Cooperation Treaty (PCT), both of which the Philippines is a long-time signatory to – there is a great deal of presumption of regularity in patents issued elsewhere. It is somewhat analogous to having a driver’s license in one country and applying for one in another country; it is still necessary to complete the application procedures, but the assumption that the applicant already knows how to drive reduces the process to a matter of routine.

More subjectively, the usual pride Filipinos take in the achievements of their countrymen in other parts of the world should have entitled this inventor to at least a little deference. Obtaining a US patent for a commercially applied process – and not just a patent, but one endorsed with a license number to facilitate the acquisition of patents in other countries – is a respectable achievement. After all, people with the barest connection to the Philippines become celebrities in this country for achieving much less.

Incredibly, the application, which should have been a rubber-stamp affair, was denied. It might have been one thing if the application had been rejected on substantive grounds, such as the invention being presented was not sufficiently innovative, or did not have a practical application, but the patent was denied on grounds so patently wrong that one would have to conclude they exceeded mere incompetence and were a deliberate attempt to deny the inventor rights to her own intellectual property.

In his examination report, the IPO examiner, a certain Jerson P. Turga, rather unctuously stated that the application was incomplete, that proper filing fees had not been paid, and that filing deadlines had been missed, and that a required records search (that is, verification of whether or not the invention in question was the subject of any patent, application, or publication elsewhere) had not been conducted. With regard to the latter, the priority number assigned to the patent by the US Patent Office – a number specifically provided to facilitate verification by any country that is part of the Paris Convention – had mysteriously disappeared from the IPO report.

Absolutely none of what was contained in the examination report was correct, as the actual documents – every one bearing a stamp of receipt from the IPO – confirm. How many of the 50-plus pages filed and marked received later came to be missing as far as the examiner was concerned is something that the IPO should explain. One of the more ridiculous aspects of the examiner’s report is that most of the adverse findings are contradicted on the application’s cover sheet showing number of included pages, filing dates, the US priority number, date and amount of fees paid, and so on.

Efforts to rectify the bogus findings, however, have been stonewalled until now, even to the extent of an attorney who was supposedly assisting the inventor filing a withdrawal of the application at the IPO without her knowledge (a step that the inventor eventually discovered and was able to correct). Even so, the IPO’s efforts to stop the patent from being issued have not been consistent, suggesting that not everyone is exactly the same page; despite supposedly being denied, withdrawn, or both, the application was published in the January 2018 IPO Gazette.

The whole farce begs the question, who, exactly, would obviously benefit from the non-existence of this particular patent? The apparent answer to that is the only company here for which the one commercial application of the invention (so far) is at all relevant, The Covenant Car Company Inc. (TCCCI), the Jose Cuisia-led exclusive distributor of Chevrolet vehicles in the Philippines. Correspondence from the Bureau of Customs to TCCCI helpfully informing (speciously) the auto dealer that the patent application did not exist tends to lend weight to the impression.

The reason why TCCCI would have an interest in the matter is easy enough to understand. If the company is selling vehicles in this country equipped with some technology for which a patent claim exists in this country – regardless of the existence of a patent anywhere else – the company is liable for royalties to the patent holder. With margins already razor-thin for most auto dealers (typically, they’re about five percent), an additional cost of several thousand pesos per vehicle is something that any distributor would go to great lengths to avoid.

The most worrisome aspect of this story is not the injustice being done with such crude impunity in the case of this inventor’s one invention, but the signs that it is part of a far broader and dirtier pattern of greed and gross disregard for the very concept of intellectual property. Investigating this single matter has opened the proverbial can of worms; there are far more stories to be told, most of them pointing to conclusions that the IPO works much less for the benefit of inventors than it does for business interests that have a lot to lose by actually paying for the IP they use. In the meantime, creators should perhaps be warned: Until the extent of the rot is fully exposed and drastic steps taken to cure it, your work is not safe here.
Twitter: @benkritz



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