Is the demand for patents stifling reform?

It may seem an odd time to be discussing the creation of a global patent system. Gardens around the offices of the Munich-based European Patent Office were besieged by pigs and tractors recently, as part of a demonstration against biotech patents.

Meanwhile, campaigners against the introduction of patents on pure software are starting to crank up their lobbying ahead of an enlarged board of appeal examination of the issue later this year.

“There is a sense of disquiet. This is a clear political fact that makes me pause when discussing the idea of a global patent,” said EPO president Alison Brimelow.

However, in spite of anxieties in some quarters the demand for patents continues to rise, especially in Asia. But even in developed, western economies the demand is relentless, Brimelow told a gathering of patent lawyers, technology transfer experts from universities and corporate executives.

This rocketing demand poses threats to the system. “Patents are all about being open and clear. If you have volumes of unapproved patents pending the system can’t be open and clear,” she said.

If patent offices around the world coordinated their efforts more this could help tackle the relentless demand, she said, as failure to cooperate results in wasteful duplication of efforts. The five most important patent offices – in the US, Japan, China, South Korea and the EU – have begun 10 projects intended to serve as building blocks for a global patent system.

The projects include an attempt to harmonise the classification of patents, how patent examiners are trained, and how patents are searched. A further idea is to help examiners to connect to each other, for example via a version of facebook.

Harmonisation of patent classification is the most likely of these projects to be carried out. The idea is to adapt all patent offices to the best ways of classifying being carried out by the five patent offices at present. This could be achieved within two to three years, Brimelow said.

She is less precise about the other initiatives but very clear about one important fact standing in the way of a truly global patent system. “There won't be technical cooperation concerning the substance of patents so I do not see Europe accepting US-style business methods,” Brimelow said.

One of the fears – particularly in the software community – is that globalization of patents will mean dumbing down to the system in the US, where the bar for what can be patented is set lower than in Europe.

In the EU the system not only sets tougher standards for applicants, it’s also much more expensive to litigate here than stateside, partly because you have to fight it out in several different national patent courts, rather than in just one in the US.

“We file only in the US, for reasons including the cost of filing and litigation in Europe as well as the complexity of the system here. Within the EU patent reform, it will be important to consider mechanisms to ensure high-quality patents,” said Kalliopi Spyridaki, EU affairs manager at SAS.

Talk of a global patent seems all the more premature when Europe can't even agree on a single patent regime for itself. Earlier this year the European Commission launched a new drive to create a single patent litigation system for Europe, but Brimelow, among others, wasn’t very impressed.

“If you want to harmonize the litigation system you have to harmonize the system of granting patents first”, said Bruno Vandermeulen, a partner at the law firm Bird & Bird. The creation of a single European patent, known as the Community Patent, has been blocked for over three decades, he said.

One way forward would be for EU countries to reach an agreement along the lines of the Paris Convention (which covers other types of intellectual property such as trade marks and copyright), Vandermeulen suggested.

Brimelow said the failure of European countries to overcome their national self-interest and forge a single patents regime is very unsatisfactory and is largely down to a ‘what’s in it for me’ attitude.

Vandermeulen went further, suggesting that the inertia shows that Europe’s patents community comprises “the last racists in Europe”.

“A lot of costs are caused by the current discrepancy between the various national systems as they are now. By creating an EU-wide patents system then the national level would have to disappear.”

The language issue is often cited as the main stumbling block for the creation of a Community patent. But Brimelow said that it has nothing to do with problems of expression or being understood. “It’s about national identity and as such very important,” she said.

Similarly, many patent practitioners feel that the need for a national patent office in all 35 EPO countries is more about emotion than about real need.

They suggest that the way patent offices are funded and structured needs to be re-worked. Countries feel they need a patent office like they need a national airline but it was suggested that there should be more cooperation, so that, for example, the best examiners in one particular field handle all applications in that field across Europe.

Another suggestion for the national patent offices that arose from the seminar: small innovators especially will always want to work in their own language, so perhaps the majority of national patent offices should serve as advisors to potential applicants rather than as patent examiners.

Food for thought indeed.