The future of the European patent system - current developments and trends

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Speech by Mr Benoît Battistelli, President of the European Patent Office to the
ASEAN MEMBER STATES-EPO HEADS OF INTELLECTUAL PROPERTY OFFICES CONFERENCE

Hanoi, Vietnam
13 January 2011

INTRODUCTION

Ladies and Gentlemen,

I feel honoured to address you for the second time today. This time I have the privilege to provide you with some insights as to my visions and objectives concerning the future evelopment of the European patent system.

This morning I reported about the different measures we are pursuing at global level in order to maintain and further improve the quality and efficiency of the international patent system.

Now, I would like to focus on the prospects and measures we are concentrating on in Europe in order to further enhance the quality of our procedures and in particular the timeliness of our decision making process.

First, I would like to briefly expose my vision of the patent system:

  • a patent system is not a goal in itself, it is an economic tool to promote innovation. This is why, for example, I consider that, for a patent office, the wide dissemination of the technological information contained in patent applications is as important as its role in granting patent protection.
  • a patent system must be balanced, taking into account all the interests concerned. While granting an exclusive right like a patent, a patent office must always keep in mind its impact on other actors, such as economic competitors, or other principles like free competition.
  • a patent system must be efficient, in order to only protect those inventions that really deserve to be protected.
  • a patent system must be affordable for the different economic actors and innovators, including for SME's. The costs of possible proceedings should not represent a barrier to a deserved protection for an inventor.

To fulfil all these principles, the main duties of a Patent Office are to grant patents which are legally solid, at a reasonable cost and in due time, and also to ensure a wide issemination of the patent information.

In this regard, according to many commentators, in particular the users' associations, the performance of the EPO has been quite good. Nevertheless it is not because we were good in the past that we will be good in the future. What is more, the European patent system is also constrained by certain systemic weaknesses which have to be rgently addressed.

Let me now turn to these challenges by focussing first on the internal ones.

I.- EPO's INTERNAL CHALLENGES

As the central patent granting authority for Europe, the EPO must be an influential player in the patent field and has to organise itself accordingly. Two elements are essential to be in this regard: improving quality and efficiency on the one hand, and developing cooperation on the other.

Improving Quality, Controlling Costs, Increasing Efficiency 

High quality patents offering maximum legal certainty, and protecting the interests of both innovators and the public, are the cornerstone of a patent system which is it for purpose.

My primary aim is to uphold the EPO's standing as one of the best patent granting authorities in the world.

To do so, we must focus our energies on maintaining and if possible, improving upon the high quality of the EPO's search and examination procedures. We must serve our applicants better and perform in conformity with international worksharing objectives.

In this respect, my goal is to improve the quality and reduce the pendency of the average file at the EPO.

The granting of high quality patents must be carried out without imposing unreasonable burdens on users of the system. This entails that the granting procedure must be optimised, and costs must be carefully controlled.

It is one of the primary objectives of my presidency to engage in a continuous drive to improve the EPO's efficiency.

Particularly under the present, difficult economic circumstances, innovating entities should not be made to bear additional costs. For this reason, I do not intend to either significantly increase fees at the EPO or change their structure.

European Co-operation: the European Patent Network

Nowadays, the diversity of tasks of a patent office requires to be able to develop various solutions. In the global economy, it means to implement a fruitful cooperation policy with external partners.

In this regard, EPO Member States clearly do have a role to play in fulfilling the EPO quality objectives and this will be facilitated by improved co-operation with the EPO member states within the framework of the EPN.

Within the EPN, the EPO will maintain its central role throughout the entire grant procedure as head of the network.

However, national patent offices will play an important role complementing that of the EPO, particularly in developing dynamic IP and innovation policies, and jointly exploring ways to enhance synergies and efficiencies between offices, as well as the quality of the European patent system.

Within the EPN, it is my goal to develop strong co-operation between the EPO and the NPOs in Europe. We should strive to network our competences inter alia in fields like IP / IT co-operation tools or training for examiners.

In the coming months, taking into account the results of two strategic audits on finances and IT at the EPO which should be soon published, I will propose a roadmap dealing with the main challenges of the Office under my mandate.

For sure, I can already announce that an ambitious cooperation policy will be one of the drivers.

Outside the EPO sphere but still in Europe, other fundamental projects may also have a deep impact on the competiveness of Europe regarding its innovation policy.

I.- EUROPEAN UNION PROJECTS

If the European Patent System has recorded some high performances over decades, there are also weaknesses: taken individually, huge competing markets such as the US r Japan operate in a simple language regime, under a single court jurisdiction and enjoy a unitary patent covering their territory.

In contrast, a patent holder choosing to have Europe-wide protection ends up with a bundle of 40 European patents covering territories speaking 29 different languages and subject to 40 different court jurisdictions.


This situation has existed for many years and it means that it is much more difficult and costly for European entities to protect there innovations in their home market than for their main competitors.

To those who are still sceptical about the wisdom of moving forward on the completion of the European patent system, with a unitary EU patent and a centralised, specialised European and EU Patents Court, I would answer: this is an economic imperative.

The European projects related the EU patent and the litigation system could really improve this situation. Although the EPO does not take part in the negotiations, the EPO supports the European Commission and EU Council presidency and aims to make the best possible contribution to the ongoing discussions.

EU Patent

I would like to turn to the first EU project, the EU patent, another area in which a strong partnership between the EPO and the national patent offices of the EPC contracting states will be imperative.

As you may know, despite many years of negotiations, Europe still does not have an EU patent - previously known as a Community patent.

The EU patent should not be confused with the classic European patent. In contrast to a classic European patent, which is valid in the territories of the countries for which it has been granted, an EU patent would take effect in a unitary manner in the entire territory of the EU.

According to the last proposal presented by the European Commission in June 2010, the EU Patent will be examined and granted by the EPO in accordance with the EPC.

In other words, the future EU Patent will be no more than a European patent delivered by the EPO according to the EPC.

The main difference will be the geographical scope of protection: the EU Patent will by default cover the territory of all 27 EU member states, while under the European patent individual national territories have to be designated.

This is also an implicit recognition of the quality of the work performed by the EPO, as one could have imagined that the EU creates its own EU Patent Office, as they did for the trademarks and designs.

The recent negotiations on the EU patent, which are exclusively held within the European Union, have reached a new momentum since last December.

Indeed, although a lot of flexibility has been shown with respect to this dossier, it has become apparent that it is currently not possible to reach the necessary unanimous agreement among the 27 EU member states over the sensitive question of language, which has by now become the sole stumbling block of the negotiations.

In fact, to render the EU Patent financially competitive, and to prevent translation of a patent into the 23 official languages of the EU, the proposal of the European Commission has centred on the tri-linguistic regime used at the EPO.

Yet this reasonable proposal was politically difficult to accept by all EU Member States and, even if it was supported by many of them, has led to a stalemate as a result of the unanimity requirement.

Then, in December 2010, twelve EU Member States1 have submitted formal requests to the Commission indicating that they wish to enter into enhanced cooperation between themselves in the case of the EU patent and that the Commission should facilitate the same.

This initiative may well allow participating EU member states to move forward and to take concrete steps towards the realisation of a unitary EU patent, valid in the EU countries participating.

Other EU member states which are not yet in a position to participate in the enhanced cooperation would have the possibility to join at a later stage.

Therefore, on 14th December, the European Commission submitted a proposal for a Council decision authorizing the enhanced cooperation procedure.

This initiative represents a major step forward. As President of the EPO, I shall do all I can to support the European Union institutions to ensure that the EPO makes the fullest possible contribution to the ongoing discussions.

In particular, it is my intention to make every effort to accelerate, in co-operation with the European Commission, the provision of high-quality machine translations in order to support the European Commission's goal of providing high quality translations of patent applications and patents into all EU official languages at reasonable cost.

In this connection, the EPO has concluded a Memorandum of Understanding with Google aiming at the establishment of an efficient machine translation service for patents.

By the way, I would like to stress that our machine translation programme is not limited to European languages. Asian languages are just as high on our priority list.

To conclude on the EU Patent, I am now more optimistic than ever than this major project for the European Patent System is about to be adopted and the EPO will do all what it can to facilitate its implementation.

Let's now turn to the second important EU project.

European Patents Court

The strive for a centralised patent litigation system is a logical consequence of our centralised patent granting procedure and of utmost practical importance.

At present, once a patent has been granted by the EPO, the questions of validity and enforcement are dealt with by national courts of the Contracting States.

The current fragmentation of jurisdiction post-grant, is a fundamental weakness in the European patent system.

The centralisation of litigation related to European patents - and soon on EPOgranted EU patents - is a long-standing need which must be accommodated.

A unitary jurisdiction for European patents will be cheaper than multiple national proceedings and will increase legal certainty, as well as eliminate some of the current distortions of competition in the European market.

Rapid and substantial progress has been made towards creating a European court to hear cases relating to both European and future EU patents.

The draft agreement on the European and EU Patents Court has been referred to the Court of Justice of the EU for an opinion on its compatibility with the treaties of the Union.

The request is still pending but on the basis of the interim opinion of the Attorneys-General regarding the issue I am optimistic that the EU Court of Justice helps to design a possible way forward towards the creation of a centralised European patent litigation system which is vital to Europe's economy and industry. The answer might come soon.

CONCLUSION

To conclude my intervention, I would like to stress that the patent system can be a very efficient tool to foster innovation and economic growth. It must however be purposefully formed in order to fulfil its objectives.

Some of the challenges experienced by the European Patent System are common to others. In my view, each patent office has a role to play in the global context and part of the solution is to improve our collaboration.

This leads me again to the purpose of this high level event and the strategic importance to develop a strong partnership between the ASEAN and the EPO.

Ladies and gentlemen, I thank you for your kind attention.

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