History is full of arguments and wars waged against others for the protection of rights and possession of goods. Whether it was the freedom to practice a religion of choice or the right to govern in a different way, defense of a race against genocide, or protection from terrorism, there was always something tangible or easily understood. But the Digital Era has brought a new need for protection and legal determinations that aren’t quite as definable.
As researchers continue to explore avenues of furthering knowledge, open science becomes a serious concern as the rights and responsibilities, as well as the consequences of using intellectual property. Where are the lines between the rights of the patent-holder or original source of ideas and those who seek to use, share, or use those same ideas to expand science even further? The IPR, or inter partes review, attempts to solve this dilemma, but the constant shift towards open science and open access articles has brought up new obstacles regularly.
What is the IPR?
Originally set in place to make a determination of a patent’s validity, the IPR is a chance for individuals to request a review of an existing patent and challenge its authenticity. The inter partes review is held before the Patent Trial and Appeal Board. Someone who files for an IPR does so with the intent to request a review of a patent in place already because they feel that they have grounds to contest the legitimacy and validity of a patent.
Any patent can be reviewed for authority. Like a trial, there is a requirement for evidence to exist on the side of the petitioner to prove the reason for their dispute. The person who originally received ownership of the patent can respond and contest the dispute, but ultimately, the Patent Trial and Appeal Board, through the IPR process, has the final say as to whether a patent is valid or has been violated.
With so many innovations in technology arising since the advent of the Digital Era, it’s no wonder the IPR has been integral and successful. Its inception in 2012 started the journey for many individuals to contest patents and use of requests, with hundreds of decisions made in the past decade. In fact, in the first year of the IPR’s use, 87% of the petitions requested were granted, and since then, there have been between 400 and 450 petitions filed quarterly every year.
Filing a petition to challenge an existing patent requires a set of strict steps to be followed, including a hefty fee of $9,000 just to request a review, and $14,000 if you are granted the review. But this is necessary for anyone who has been accused of infringing on a patent because the fines they face if found guilty could be much heftier.
Filers have to include evidence that they were following the patent guidelines or that the original patent was not valid. Once an IPR is filed, the patent owner and respondent can work together to reach a settlement, at which time the review will be terminated.
Balancing Protection and Open Access
An IPR sounds like a great way to be protected if you’re a patent owner. But with so many open access files abounding the digital world today, there’s a fine line between purposely infringing on copyright and patent legalities and inadvertently using information found online.
Monopolies on data and information through journal publications, adding access charges and pricey transaction fees to publish or read articles, and other obstacles interfere with the idea of open access information. There has to be a balance between copyright, patent, and open access, and that will require an overhaul of the IPR process.