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URL: Location: Home→About us→EPO events →Archive→2007→European Patent Forum and European Inventor of the Year→European Patent Forum 2007→Programme and documentation→Roger Burt
Roger Burt
IP Law Department - IBM UK, Winchester
It is not the Patent Attorney, that will use the system to gain a competitive edge but it is the businessmen for whom they work and obtain IP rights that will do so. They need a properly functioning stable system on which to base their business decisions. This imposes constraints on what we, as applicants, may do and should impose constraints on what the EPO and other Patent Offices, as guardians of the patent system and the output of patents may do. The most important constraint is that nothing may be allowed that causes a lowering of the quality of the patents issuedRemarks:
Firstly I would like to thank the Scenarios team for their well conducted and timely study.
Our breakout session is entitled “Using the IP system to gain competitive edge”
In the abstract for Mr Maerki’s speech yesterday he said:
Innovation is becoming more open, collaborative and global than ever before. That is why we need to take a fresh look at how intellectual property protection drives innovation and serves society. IBM believes we need intellectual property protection that serves both open and proprietary innovation. Patents will continue to be a fundamental tool for incenting and rewarding proprietary innovation. But in Europe, as in the US, we need to reform our patent system to ensure higher patent quality and a patent system that is accessible and affordable for all companies large and small. Patent quality is not just an issue for governments but for corporations themselves. Corporate behaviour matters. All corporations have a responsibility to use the patent system to drive innovation, not prevent it.
It is not me, as the Patent Attorney, that will use the system to gain a competitive edge but it is the businessmen for whom I work and obtain IP rights that will do so. They need a properly functioning stable system on which to base their business decisions. This imposes constraints on what we, as applicants, may do and should impose constraints on what the EPO and other Patent Offices, as guardians of the patent system and the output of patents may do.
I have been quoted as saying that “the patent system as it currently stands is capable of working perfectly well [although] that is not to say that improvements are impossible”. If that is the case what reform is needed – what do we mean by reform? One definition of the word “reform” is to form anew; another definition is to improve by alteration or correction.
When the Andrew Gowers review was published in the UK last year there was a Recommendation 4 – “policy makers should adopt the principle that the term and scope of protection of IP rights should not be altered retrospectively”. Those people who really understood IP considered this to be the most important recommendation in the whole review. It is very important that changes are not disruptive to business and retrospective changes can be just that – it is surprising how changes which at first look innocuous can turn out to be likely to cause disruption. If Mr. Maerki makes business investments based on assumptions about Intellectual property rights, he needs to know that any decision he makes is based on a good foundation and he needs to be reassured that there are not going to be retrospective changes that make his business decisions incorrect at some later stage. Reform of our patent system to ensure higher patent quality will not be disruptive but the converse is not true.
Where can we make improvements? The first thing is that we must ensure that everything we do must be working towards increasing the quality and every change must be assessed in terms of its effect on quality.
We would all agree that patents should only be granted if they have a substantial chance (90%plus) chance of being found valid. The patent examiners have it right – this is what they advocate and want to do to have a satisfying job.
There must be no rush to reduce grant times if this has an adverse effect on quality. There must be no moves to lower the search standards – there reaches a cross over point where the quality of the search is so low that substantive examination is pointless.
We have seen proposals on work sharing between national patent offices, the EPO, USPTO etc: such proposals are good but have to be well managed to avoid lowering quality. We don’t want one search or substantive examination used by all the offices but if each office did a search in the areas which it had greatest competence and then all these searches were combined and used by the individual offices in their examination this would be good. The JPO could search Japanese text documents, SIPO Chinese documents, Spanish for Spanish documents and UK for Biotech? Etc. Combine them and you have a great search.
As I asked above, – what do we mean by reform? One definition is to form anew; another definition is to improve by alteration or correction. I prefer the definition of improving by correction – we need to ensure we get back to high standards of examination but also need to take a lead from our business colleagues and become more open, collaborative and global than ever before, and this does not mean simply accepting what someone else has done and blindly using it – it means collaborating not delegating.