New EPO head calls for an end to ‘rich man’s poker’

Alison Brimelow, the European Patent Office’s new President.

Outlining the aims of her presidency, Brimelow said there is a need to ensure the quality of patents and to equip the EPO to face new challenges. “EPO is an intensely competent and professional patent office. The task now is to make sure that the patents that we grant are relevant.”

Brimelow believes the EPO is, “One of Europe’s great success stories,” but says the challenge is to deal with the expansion of the EU.

“We have a lot to be proud of at the EPO – to put it in a nutshell – 30 years of success. However, the next 30 years are going to be very different. The global patent system is changing and an organisation of 32 member states is not the same as seven.”

One of the main problems is to keep down the backlog of applications. “Huge backlogs change the nature of the patenting system and create ambiguities which can be exploited in ways unforeseen by those who established the patent system,” said Brimelow.

“This is moving us away from the classic justification of the system. If you spend several years waiting for a decision, you and others can play “rich man’s poker”, taking a bet on what your rights are going to be, and discussing your commercial relationships in the shadow of that pending set of applications.”

Small companies struggle with patents system

“I use the phrase ‘rich man’s poker’ very deliberately, as this is a game much better suited to companies with long pockets than to the small. This means that SMEs have an additional struggle in terms of effectively deploying the fruits of their innovation.”

“That worries me a lot. I am not clear that we will ever get ourselves back to the position that can be regarded as “healthy balance”. I think that the effect of backlogs in the use of intellectual property is probably irreversible, and that raises big questions for world patent offices.

More generally, Brimelow argues that there is a question mark hanging over the quality and fitness-for-purpose of the patent system. “I am very struck that people who are engaged with that system closely recognise that this high volume game is not particularly comfortable, nor economically effective, when viewed from the perspective of the public good,” she says.

“There is a set of assumptions about the direction in which we need to go, which is simply not matched by the rhetoric that we need more patents in Europe.

“What we need are more good patents and possibly fewer patents overall. Look at how long patent life is these days: it’s declining. Look at rates of abandonment: what comes in the door in no way matches what lives for 20 years. That is a significant operating challenge for us.

“‘Less is more’ is very important, and we need to make sure that the patents that we grant are highly relevant, not marginal, and have a real utility, as opposed to being a sort of currency for the ‘rich man’s poker’ game.”

Brimelow added, “I don’t like looking backwards. We need to ensure that how we perform matches future needs. I want us to remain intensely competent – basic patent examining confidence and professional skill is part of a good patent office. We are world-class in terms of our professional competence. We ought to use that competence to be a shaper of where the global patent system goes next.”

Patents must be global

In a globalised world, there is no point in EPO deluding itself it is simply providing a local service. “We are not. We are a global patent office in a global economy. All big patent offices are struggling with the same problem – accessing prior art and keeping backlogs under control,” says Brimelow.

“Being prepared to “utilise” work, particularly the searches done by other offices, is both rational and essential if the patent system is to keep its head above water.”

The EPO, says Brimelow needs to be active in Brussels and internationally. “As I have made clear already, the global IP environment is changing. Europe needs to engage proactively with that process,” she says. “That means working effectively in and through the Administrative Council.”

“Member states are our line of democratic accountability and their responsibilities in IP go wider than those of EPO. But on patents, the Office is uniquely knowledgeable and should use that knowledge to help Europe take the right decisions.”

“Both the member states and EPO need to work effectively at every level with European institutions. That means listening, reflecting on what sort of IP framework will sustain and improve Europe’s growth and competitive position.”

“IP is not an end in itself. It serves an economic purpose. We need to ensure that what we do, and how we do it, serves that purpose and makes full use of the global standing of the EPO.

But Brimelow acknowledges also that EPO has problems closer to home. “The message from industry is very clear, they want a Community patent, but they don’t like what’s on the table.

“There are also voices which say that they are absolutely certain that the European Patent Litigation Agreement is exactly what they want, and others who have real reservations.”

But you have to get on with what you can, whether it's development of the European Patent Network, or working more closely in the trilateral [agreement] with Japan and the US, and with the fast growing offices of China and South Korea.”

“There are,” says Brimelow ruefully, “More than enough areas for improvement, and making progress wherever possible is what we need to give our energy to.”

A UK national, Brimelow succeeds Alain Pompidou, who had headed the EPO since July 2004.

Before joining EPO Brimelow gained experience of intellectual property at national, European and international levels. She joined the British Diplomatic Service in 1973 and later transferred to the Department of Trade and Industry, where she was mainly concerned with policy in the EU. In 1991 she went to work at the UK Patent Office (now the UK Intellectual Property Office), becoming head of the Trade Marks Registry.

In March 1999 Brimelow was appointed Chief Executive and Comptroller General of the UK Patent Office and became head of the UK delegation on the Administrative Council of the European Patent Organisation. From 2003 to 2006 she was the Council's Deputy Chair.