Under the current rules of patent recordation, it is impossible to be sure who owns a particular patent, or what patents a particular entity owns. This “who owns what” problem frustrates risk management and decision-making about patents, and artificially creates arbitrage and hold up opportunities that companies have exploited and forms a major component of patent notice failure. However, the who owns what problem in patent law is attributable to a wide variety of behaviors, taken for both opportunistic as well as innocent ones: 1) failure to record ownership, 2) failure to record ownership in a timely manner, 3) assignment to shell or subsidiary companies that the PTO does not affiliate with the real party in interest, and 4) inconsistent self-identification. Cost, poor-record keeping, tax regulations, and the complexities of corporate ownership, as well as more opportunistic motives, explain why these practices are prevalent. This comment, submitted in response to the PTO's 2012 request for input regarding proposed recording rule changes, and reporting on empirical research done on patent recordation behaviors discusses how and whether patent recording rules should be changed in light of the desire for enhanced notice.
The Who Owns What Problem in Patent Law
Available at: http://digitalcommons.law.scu.edu/facpubs/190