Patent reform: déjà vu all over again?

Is it because the patent process is not entirely broken that it appears so difficult to fix?

Over the last few weeks, proposals for the reform of patent process both in the US and in the EU have been published. I hesitate to call those proposals “new” as they appear depressingly familiar: yet another attempt by the European Commission to create a “community patent”; and yet another incremental, yet controversial, proposal to modify the US patent law.

One can accuse the Commission of many sins but  lack of persistence is not among them. For several years now, the Commission has been promoting a single community patent, which would reduce the cost of intellectual property protection and contribute to enhance its competitiveness. Unfortunately, a legislative proposal for the European patent was killed by the European Parliament in 2004.

After a decent interval, the Commission decided to relaunch the European patent idea. The first step was an extensive public consultation among patent stakeholders, launched in January 2006 and which generated over 2,500 responses.

As usual in such a case, these responses covered a range of reactions and suggestions, which were difficult to synthesise with a view to formulating coherent recommendations. Nevertheless, the Commission managed to accomplish precisely that and in early April, it published the results of the consultations as well as its own recommendations.

Those recommendations do not contain anything really revolutionary. For instance, the idea of mutual recognition of national patents, similar to that used for financial services, is discarded in favour of a centralised approach, based on the European Patent Office and an EU-wide patent jurisdiction.

The main interest of the EU paper is its focus on integration of patent jurisdiction. The paper reiterates a hope that progress on various aspects of patent framework will be made. At the same time, it remains cautious about the pace and the scope of this progress. No date is provided for an agreement on common jurisdiction and for new community patent proposal. In light of past experience, I am not holding my breath on rapid progress in this area.

Meanwhile, across the Atlantic…

In the United States the bi-partisan Patent Reform Act of 2007 was introduced in the House and Senate on 18 April. The bill updates the current legal framework for US patents. Its main feature is the clear affirmation of a “first-to-file” principle and an attempt to reduce the potential for litigation.

This is not a first attempt to reform the Patent Law, which has remained essentially unchanged for the past fifty years. Recent attempts failed because of the lack of political support. This time, the new Democratic majority appears more committed to the reform. Nevertheless, its approval is far from certain.

The problem is a deep divergence of views between two main patent constituencies: IT heavyweights support it, while pharma and biotechnology enterprises oppose it. Other analysts criticise the bill for its lack of ambition – for instance, its affirmation of the“first-to-file” principle simply aligns the US with all other major countries.

There is also concern that proposed remedies to reduce litigation – giving US Patent Office the right to review already approved but contested patents – will increase uncertainty about patent validity. In any case, the bill does not address the key issues, discussed in our earlier blogs, of patent coverage and patent backlog.