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Ingrid Schneider

Senior Researcher - University of Hamburg

The EPO Scenarios are a unique, exciting and courageous project. The four scenarios provide marvellous projections of the diversity of possible futures. They invite all of us to deliberate on the desirability of each scenario, and on the measures to be taken to prevent undesirable effects. Thus, the governance of the patent system is at stake.

For a long time, the patent system was confined to a community of highly specialized technicians and lawyers. During the last two decades, however, an irrevocable politicization of the patent system in increasingly knowledge-based societies has taken place and its legitimacy has been contested.

The EPO itself has become an important global player in shaping the future of the European and international patent systems. It has to take responsibility for this role. Institutional reforms are needed for a coherent and consistent European patent system which subjects itself to democratic accountability, transparency and control. Therefore, a closer co-evolution of the EU and the EPO system is paramount.

Patent granting itself must be seen as a regulatory activity and a tacit policy-making practice, it is not merely a passive execution of law. Patent-centrism has to be overcome in favour of a redefinition of Patent Offices as Knowledge and Innovation Agencies. Patents are an interventionist instrument of the state to foster innovation and social welfare. As such the patent system must constantly prove that it does live up to this purpose. Patents are not an end in itself but means towards innovation which must be embedded in a global framework of sustainability, equity, and social justice.

The old mantra “the more patents the more innovation” has become obsolete. Patents are double-edged swords with manifold, ambiguous and often contradictory effects. Hence a careful balancing and tailoring of IPR is required, and the expansion of the patent system should be critically scrutinized.

Boundaries to the patent system are following two rationales: Certain knowledge

• is so important that it must be freely available and accessible to all
• is so problematic, that it should not be used by anybody

The first boundary traditionally was met by the distinction between discovery and invention, the second by the Ordre Public clause (Article 53(a) EPC). Both boundaries have eroded. However, we must strive to find substitutes and new benchmarks for limits of and within the patent system. Finally, there is a need to think about enlightened self-restriction, as an overly voracious patent system may eventually be bound to eat up itself.

Therefore, I propose to establish a department for ethics, technology forecasting, and patent assessment within the EPO, made up by experts from different disciplines, to pro-actively analyse the impact of patents granted in order to enable a better knowledge management, and to give consultative advice for the granting departments and the boards of appeal.

Secondly, the EPO should create regular participatory forums for the deliberation of patent eligibility requirements and patent scope in new technological fields with stakeholders, experts, users, and public interest groups. In short: all those affected or afflicted by the patent system should be involved.

Hence, the scenario project is not the end but just the beginning of a broader process of reflection and transformation. The public has to be viewed not as an adversary but as an ally, and the EPO should continue the dialogue with society at large.