Jurisdiction - Singapore
Proposed Change to Singapore’s Patent Grant System.

12 January, 2012


Legal News & Analysis – Asia Pacific – Singapore  – Intellectual Property


Singapore’s current patent system is based on a selfassessment regime (“the current system”). Under the current system, a patent will be granted even if the examination reports are mixed or negative, as long as the procedural requirements are met.
In 2009, the IPOS conducted a public consultation on the proposal to move away from the self-assessment regime to a positive grant system. Under the positive grant system, patents are only granted when the examination report is positive. This raises the threshold for patent grants in Singapore. The feedback received from the 2009 consultation was released in December 2011 when the IPOS conducted a second public consultation on the same issue, but focusing on the legislative changes that would be implemented.  The general conclusion of the 2009 consultation was that the proposed move to a positive grant system was received.  
Reason for the change 
It is important to note that the proposed change does not arise from material deficiencies in the current system.  According to grant statistics released by the IPOS, the current system works well in Singapore as applicants exercise good judgment in evaluating the strength of their inventions before proceeding with patent application. After all, such prudence is required as a weak patent would have less chance of success in subsequent enforcement actions. Not only would patents and royalties be lost, the applicants themselves would lose credibility as their patents are unable to withstand opposition.  
Despite the success of the current system, the IPOS revealed in its 2009 consultation paper that it has been receiving requests from both IP owners and third parties to consider amending the patent system to grant patents only when the examination report is positive.  
The call for change seems justified. Beyond just the lost of profits and credibility of patent owners when their patents are subsequently revoked, the society also loses out if a weak patent, though unopposed, is allowed to run its course. Inventors, when conducting their experiments, have to be careful not to infringe any existing 
patents. As such, the rights associated with a patent grant have to be finely calibrated to ensure that innovation is not stifled. During the time a weak patent is in force, other inventions that are potentially beneficial might be hampered.  
The current system is indicative of Singapore’s aim to encourage invention and innovation by making it easier for applicants to obtain a patent grant and it has been shown to be effective, as can be seen from the quantity of patent grants each year. However as Singapore seeks to be more competitive in the region as well as internationally as a medical, innovation and R&D hub, there needs to be shift of focus from quantity to quality. This is what the proposed positive grant system seeks to achieve, by ensuring that potentially revocable patents are not granted 
in the first place. The result is that industry players are given a safeguard—that the patents that they invest or rely on are of a certain quality. With only strong patents allowed to dominate the market, the needs to incentivize innovation and protect existing inventions are better balanced.  
With a higher threshold for patent grants, inventors would be incentivized to work towards stronger patents.  In view of the stringency of the positive grant system, the IPOS has suggested that a hearing process be in place for the applicant to deal with objections by the examiner where the examination report is mixed or negative.  Another outcome of the change is that it may result in a separate 
tier when evaluating patents granted by IPOS—for example by investors. Investors may take the view that post-change patents are more ‘rigidly evaluated’ so have higher valuation rather than prechange patents.


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