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Alison Brimelow - Closing remarks at the European Patent Forum 2008
First of all, I think I must say thank you. This Forum has been for me a very stimulating and open discussion. I'm here in part because I'm keeping a promise, a promise I made a year ago, when I took into my hands the booklet containing the scenarios and said we would be using them. And as I think we've made clear, our discussions over this couple of days here in Ljubljana reflect some of the thinking in those scenarios, and very worthwhile I have found it.
There's a "but" coming! Very early on in my time as President of the European Patent Office I embarked on a series of visits offering time for quite a lot of discussion with colleagues all over the Office. Very early on I spent time with some people who were dealing with patent formalities, patent administration, and they expressed quite a lot of frustration with what was happening, how their working environment was unfolding, how they felt they could do the job better, and as I got up to leave after an hour and a half, they gave me a little picture. It was a montage of my head, from my official photograph, on a fairy godmother, complete with wand. And I think I have to say the "but" here: much as I would like to be, I am the President of the European Patent Office and not a fairy godmother. But I am also someone who likes to get things done. I have had a lot of food for thought - and I'll come to some of the things that we might do, including picking up on something that's just been said - but could I offer an observation - and it's one that I have made for some time, I mean over several years - I think it is easy to treat the patent system as a lightning conductor for other anxieties and frustrations. We are a pretty easy target. And though I think it is very clear that there are a number of areas where we need to change and probably change quite fast - and I will come back to that in a moment as well - altering the dynamics of the patent system alone, I think, is not necessarily going to produce the solutions to the problems we have been reflecting on over the last day or so. And I was very glad to hear regularly, as I moved around the Forum, that we know that the patent system can foster innovation and indeed, as one group concluded, that it was too risky to do without it. I think we saw last night in the awards ceremony very clear examples of how, within the context of that system, lives can be touched and improved, and I would hate to pretend or imply that that positive set of outcomes somehow didn't matter or was of less importance than some of the deficiencies and problems we have been talking about.
Which brings me to, I suppose, a challenge, which I accept, but I also know that it is not just for me, because if you say that the patent system can be useful in addressing innovation, including innovation to address the problems of climate change, then for goodness' sake, you'd better have a functioning patent system. And I am sorry to have to stand here and put it as bluntly as this, but it seems to me that I am well justified in using the analogy of global warming when I talk about some of the problems that I see in the global patent system. And indeed, as I listened to Thomas Homer-Dixon this morning, with his astonishing and indeed alarming pictures of what was happening to the North Pole icecap, I found myself reflecting on some of the policy choices that face us in terms of keeping our citizens safe, and also, if that was what was happening to the North Pole, were there reasons to be as anxious about the need for action in the context of how the patent system was functioning? For those of you who haven't heard me on the subject before, I regularly say that there are analogies between the state of the patent system and global warming, in that something seems to be happening, but we don't agree that it's happening, we certainly don't agree on why it's happening, and we don't agree on what to do about it. I think that what I hear from discussion today is that we need to move from disagreeing to deciding at least what a minimal level of response is. And one of the words that came up over and over again was "time". Do we have time? And I'm afraid that if I contemplate the state of the patent system, time is one of the things we are singularly bad at. The patent system is, without dispute, slow. And that slowness leads to opacity. We do not know what is sitting in the area of darkness which is unexamined patent applications around the world.
That, of course, is partly a challenge for me as President of a patent office, and Marcus Müller has mentioned that we are embarked on a programme to try and address some of these questions of performance. We certainly are responsible and accountable for performance, and under Strategic Renewal we have a series of projects running, looking both at what we call "Raising the Bar", which is the quality and threshold of patentability, and also how we work. Can we work better? Can we work more efficiently? That is a big programme of change for any institution and it will take us a while to get through all the things we've identified and we're still identifying more, but I am happy to say that early proposals will be coming through consultation in the next month or so, which is not bad, given we are a system that moves quite slowly.
But EPO is not just Office, but Organisation, and the bridge - and I'm grateful again for a suggestion that was just made on the platform - the bridge may well be that collation of options that was referred to. There is a lot that we heard today that I think does need to be transmitted further, and I'm happy for the Office to act as collator, collator certainly for the Organisation. But specific issues which I can highlight now for the Organisation also have been touched on. The question I wrote down for myself was: are we actually designing a Community patent which is fit for the past and not fit for the future? And we heard one or two comments just now that indicated that we might be looking further ahead. But will that take too much time? We operate under a legal system, the European Patent Convention, which I can only liken to a super-tanker. There are plenty of people in this room who know that it was only at the turn of the year that we managed to bring to life a document called EPC 2000. It was a whole seven years awaiting ratification and the thinking of that document extended well back into the 1990s. In terms of timeliness, can we really manage with a structure that is so unwieldy?
One positive thing about that, of course - and it takes us to the area of political engagement, which was also touched on - is that under EPC 2000 there is provision for a regular ministerial conference, and in terms of raising profile for some of these concerns, we could do it there. But I would expect a wry laugh from you when I say that we are expecting the first such conference probably to take place in 2010. What was that we were saying about time?
Another idea, which I think is for the Organisation to reflect on, is the question of does one size fit all? It was a key principle of the system as it has evolved. If we are to change that, who chooses? Who says what size should fit? What size of organisation or choice? And I think that you need to reflect a little bit - I certainly have done so for a lot of my career - on the balance of advantage between government deciding and markets or citizens or the wider polity deciding. And looking again at some of the things that were said this morning about geo-engineering, I was forcibly reminded of that well-identified law, the law of unintended consequences. Yvo de Boer spoke very clearly about the need for greater clarity. Where are there barriers which are IP-related and where not? And I think also John Barton's contribution reminded us that actually innovation is affected by multiple policies, not all delivered by the same institutions of government or same levels indeed, and you need to reflect on where your incentives are. What is it that is encouraging Bavarians to use photovoltaic cells more than anybody else in Europe? The ease of selling spare energy back to the grid, which is pushing take-up and pushing innovation. Incentives matter: get them wrong and you're back with unintended consequences. Subsidies: well they have to be paid for, and again, are you subsidising the right behaviours? Watch the interactions, and if you wish people to collaborate, as indeed I think we have heard consistently that more collaboration might help, speaking as someone who has worked in the field of competition policy, do be careful, because you may run into the competition authorities. If you are trying to drive change, do make sure that your policies are consistent and pull through in a consistent fashion.
A further reflection on who should take decisions: if regulators don't take decisions, or don't agree, I think we probably know that one way or another markets will fill the gap. Markets are beautiful things. They perform very effectively. They take no prisoners. And I think that as we contemplate the need for innovation and the potential scale of the problem of global warming, we need to reflect very clearly - and again it's one for reflection in the political context - do we think that leaving it to the market would be socially optimal? Will it achieve real benefit for society? When I talk about the challenges that I see facing the patent system, I comment and I have been commenting for a while. It doesn't always make me popular, but that's the advantage of being in one's last job: you can call it as you see it. I comment that we have a number of choices. One is, do nothing. Wait and see what happens. Something will turn up. Quite possibly. I'm not sure when, not sure that it will be optimal. But I've been fascinated. I spend a lot of time taking to people using the system and I hear a different note, and I've heard it particularly these last couple of days here: in the context of time, should we not actually be reflecting seriously now that if our backlogs are not going to come under control - and I think it's fairly clear they are not - do we indeed need to look more seriously at taking duplication out of the system? And that may mean mutual recognition, which for Europe is hugely problematic. I don't underestimate that at all, but the question is coming through very clearly now and we are most certainly in Europe here. Or do we simply say, de facto, we have a deferred examination system. It works very well in Germany and in Japan, just for example, let us make it de juro and if you like legitimise the waiting. Possible. And a final area - and you know that I didn't wholeheartedly endorse the remarks of Commissioner Verheugen - should we be looking at actually what this system costs? Is cheap ideal? Although I think we all recognise that SMEs need special consideration and a special regime.
Those issues are about how the patent system works. As I've said, if the patent system isn't working - and I think it is drifting towards disfunctionality - then we can kiss goodbye to any potential sustaining of innovation to deal with climate change delivered by the patent system. There are real challenges for us in the system, the European Patent Office and all, to reflect on what we can do better and how fast. Back to that ministerial conference of 2010.
I don't know what ought to be sitting on the Yvo de Boer memorial chair in the way of the UN climate change conference challenge in Copenhagen 2009. I think it's a real challenge. My anxiety - and it's a real anxiety - is that what we will end up with is a very anodyne statement that comes very close to being a lowest common denominator. My own perception is that that is unworthy of a system that has served innovation very well, and unworthy of the needs of a world that needs to change. And if we cannot deliver something that is better than anodyne and lowest common denominator, we might indeed ask what the hell we think we're doing here. That's a cheerful bundle of things to send you on your way with! There is a drink outside, so you can recover.
But one final thought: I think we are showing here that regulators are indeed becoming less Olympian. As the waters rise, we are coming down from the heights of Mount Olympus and becoming more open to dialogue. I think that is very positive. I know Martti Enäjärvi, my Finnish colleague, told me that he had a conference on this theme ten years ago, but the simple fact that we are talking about these issues here now is in my view innovative, and I intend to keep pushing what we're hearing towards policy changes, not just policy options - we've heard some today - but policy changes as well, because I think that pace of change needs to accelerate if we are to keep up. But the first you have to do is to be accessible, open and run the dialogue, and I hope you can feel that this exercise has been worthwhile in that context.
I have lots of thanks. I think my first is to all of you for coming and contributing. I've learned a tremendous amount, both in open discussion and in more quiet discussion over lunch or tea or coffee. These exchanges are essential, and indeed I do listen. I'm very grateful to all my colleagues in the Office for making this event roar along. It has been great fun, as well as immensely interesting, and a huge amount of hard work for them. Thank you all very much. And Roger Harrabin, thank you for being the most splendid facilitator. You asked lots of nasty little questions, you pushed us to reflect and you challenged, and without you I think we would have found it altogether much stickier. So thank you, one and all. Watch this space. I think we now have to start moving.
Thank you very much.