McCreevy pledges to have one last try on patents

One thing the EU is meant to be good at is compromise. But not on patents. After the latest ‘compromise solution’ of a single patent court bit the dust, Commissioner Charlie McCreevy wearily promised to have one – last - go

“We are now at a fork in very long and winding road,” Commissioner Charlie McCreevy told the PanEuropean Intellectual Property Summit meeting in Brussels just two days after the compromise deal of a Single Patent Court he had worked so hard to craft was rejected by national governments.

The decision sparked an angry response from the European Commission, but following the rejection, McCreevy said he is now joining forces with the incoming German presidency to talk to member states, try to find a way to bridge the various opinions that have been expressed, and come up with a single proposal. “Our objective is to work together to prepare the ground for a more fruitful debate and some progress in this long-running saga,” McCreevy told delegates.

“I will not over-dramatise the situation. But I will put it to you straight. If we are not able to find more fertile ground for a proposal over the coming months, then we might as well put our energies to better use.”

However, there is a serious risk that the Commission will muddy the waters still further because whether or not it manages to pull together a unified view on a single patent court it plans to issue a separate document on related aspects of intellectual property rights.

These ‘flanking measures’ mainly concern small companies and will include key issues such as, Quality of patents in Europe; Patent litigation insurance; Alternative dispute resolution schemes; Improving awareness of intellectual property rights; Better management and financial reporting of patents; and International enforcement of patents.

Where there’s a will, there’s a way

Everyone agrees the existing patenting system needs to be streamlined. This was the one clear, unequivocal message that came out of the public consultation the Commission held in spring this year. “It repeats a message that has been obvious for years,” McCreevy said, adding ruefully, “and yet Europe has been struggling for more than two decades to agree how to get there.”

Despite promising to have another go, McCreevy admitted he was “not optimistic” of success. Bitter experience shows that the patents area is a minefield, fraught with difficulties. “But I am a man of my word. When I took up office I said I would make one last attempt to make progress on the patent system, when the time was ripe.”

However, McCreevy’s thorough bruising poses the question whether there really is a will to find a EU-wide solution to the patents problem.

He claims straws in the wind, such as the recently submitted report commissioned by Thierry Breton for the French government on the "Intangible Economy", and the Gowers Report on Intellectual Property in the UK, show member states may be waking up to the challenge.

“This gives me some hope. But a good solution will require compromises from all involved,” said McCreevy. He promised the Commission would continue to work on the issue, and called on industry to play its role by repeating at home all that it said in the consultation process.

Furthermore, McCreevy denied claims that setting up a single patent court would reduce the quality of patents in Europe, saying, “The quality of patents in Europe, particularly in new technology sectors, is of paramount importance to the users of the system. Any initiative aiming at reduction of patenting costs must be accompanied by patent quality enhancing solutions, [to] make sure that patent applications are properly searched and examined.”

Any changes to patent jurisdiction would contain safeguards against low quality patents, including protection against the destructive practices of patent trolls.

However, this is at odds with another undertaking from McCreevy to make sure that small and medium enterprises have access to the patent system, unhindered by complex procedures and high costs. “In that respect, we will look carefully into the idea that many SMEs put forward in their contributions: an alternative dispute resolution system, in the form of mediation or arbitration, for certain patent case,” he told the conference.

“Our objective is to produce a system that, at all levels - national, European and Community - meets the needs of all stakeholders and provides a fair balance between the diverse interests involved.”

“The next few months will be critical if we are to make progress. I sincerely hope that there is a will and that we will find a way. But I will not beat about the bush if that proves not to be the case.”