Delays undermine innovation

One of the main causes of the growth of patent offices’ delays is, naturally, the increasing number of patent applications filed every year. Not only is there an increase in the number of patent applications worldwide, but also a higher complexity in their content, which might cause each examination to take longer. It has also been argued that delays can be caused by structural problems at the patent offices because there are not enough examiners to handle so many applications. After all, patent offices do not have a sufficient budget, because of inefficiencies in the examination process, or because of a lack of adequate formation and expertise among the patent examiners.

Applicants might be interested in delaying the examination proceedings as well, particularly in those cases where they still do not know if the invention will be commercially viable. Having a patent application awaiting a decision from the patent office for an excessive period can have significant negative effects. These effects will certainly vary depending on each jurisdiction, on each industry, and, most importantly, on the magnitude of said delays.

The most important harm is probably the one caused by the patent owners. This is particularly so in systems where the patent protection is calculated as of the date of filing, which is the case in most countries since the TRIPS Agreement entered into force. Long delays in the patent examination are also likely to discourage innovation, not only from the patent owners who suffer the delays themselves but also from any other party who becomes aware of such delays. Excessive delays might even have an impact on the quality of the examination performed by the patent offices, especially if examiners are forced to reduce the time they devote to each application to reduce the existing backlog.