Will Patent Classification Harmonization Based On The Cooperative Patent Classification System Strike A Chord?

by Downs Rachlin Martin PLLC

As mentioned in my previous post on the Cooperative Patent Classification system (CPC), the International Patent Classification system (IPC), on which the CPC is based, is used by more than 100 patent offices around the world, so that the choice of starting with an IPC-based classification system, i.e., the European Patent Classification system (ECLA) appears to be a well-calculated step in achieving the long-term goal of harmonizing as many patent offices as are willing to embrace the CPC.

While loss of the visual cues mentioned in the prior post may not be more than a fleeting annoyance to ECLA users as they migrate to the CPC, the learning curve seems a bit more daunting to searchers that primarily search using the USPC.  As noted above, the USPC is not based on the IPC, and its basic structure is much different from the ICP, the ECLA, and the CPC.  Indeed, the differences are so great that it is possible there will never be an automated concordance engine that can map any given USPC symbol to an exact CPC symbol or group of CPC symbols.  However, the USPTO does provide a concordance tool of sorts (http://www.uspto.gov/web/patents/classification/index.htm) for statistically mapping a USPC symbol to one or more CPC symbols based on the most frequently co-occurring CPC classes for the USPC class of interest.  Clearly, this tool is not as reliable as an official concordance, but it may help a searcher identify pertinent CPC symbols.

While goals of having, at least, a bilaterally cooperative patent classification system between the USPTO and the EPO and, at most, a globally accepted patent classification system, are worthwhile and perhaps noble, one can only wonder whether they can be achieved.  Regarding the former, tasks requiring ongoing cooperation between peers can be difficult due to differences in priorities and viewpoints, and this author has not found anything to suggest that bi-lateral maintenance of the CPC would be immune to such difficulties.  Regarding the latter, global buy-in to a universalized patent classification system would seem to be unlikely without letting additional patent offices, such as at least the remaining three of the Five IP Offices (IP5) not involved with the CPC (i.e., the Japan Patent Office, the Korean Intellectual Property Office, and the State Intellectual Property Office of the People’s Republic of China) have a say in the maintenance of such a system.  Having three or more system-maintaining patent offices would surely increase the likelihood of encountering the difficulties in cooperation noted above.  Aside from those human factors, there are technical hurdles to achieving a successful cooperative or universal patent classification system.  Millions of patent documents classified under old classification systems must be reclassified.  If that reclassification is not performed carefully, trust in any new classification system will be diminished and searchers would likely resort to their old systems to at least supplement their new-system searches.

With the official changeovers by the USPTO and the EPO to the CPC not even four months old, it’s far too early to tell whether or not harmonization via the CPC will truly be successful.  Indeed, answers from several U.S. patent examiners posed questions about the CPC seem to suggest that there is currently skepticism among the examining corps about the changeover from the USPC to the CPC.  By all publicly available accounts, the ramping up of the CPC to fulltime usage, at least on the USPTO side, will be a multi-year process that will include patent-examiner training, building out of the CPC with useful granularity, and, if all goes well for the sake of the CPC, moving completely away from the USPC.  As of the writing of this post, the rollout of the CPC at the USPTO appears to be slow, with some patent examiners noting that they have not yet received any training and that virtually the only information they have been provided is the same information that is publicly available on the USPTO’s Office of Patent Classification page.  With the goals of the CPC being worthy ones, let’s hope the harmony doesn’t turn to dissonance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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