The EPO's primary contribution is its high patent quality, which ensures
that patent rights are only granted for technologies that are new and
inventive. This ensures that standards (or any other technology area) are not
encumbered by inappropriate patent rights. The EPO's quality is highlighted in
the annual Intellectual Asset Management (IAM) survey on patent quality, where the EPO has repeatedly
taken first place.
High patent quality is dependent on a high quality search, which requires efficient, searchable access to as much relevant prior art as possible. In many ICT fields, standardisation documentation has proved to present highly relevant prior art, in particular in relation to applications for technologies revealed in standards development discussions. In key technology fields, standards documents are cited in around two thirds of EPO search reports.
Standards as state of the art
Patents shall be granted for any
inventions, in all fields of technology, provided that they are new, involve an
inventive step and are susceptible of industrial application, according to
Article 52 of the European Patent Convention. An invention is considered to be
new if it does not form part of the state of the art, including everything made
public in a written or oral description, by use, or in any other way, before
the date of filing of the European patent application.
Standards documents typically qualify as state of the art unless they are subject to a clearly established and well respected confidentiality obligation. To be considered new, the patent
applications claiming these technologies must be filed before disclosure in the
standards development process.
Additionally, an invention shall be considered as involving an inventive
step if, having regard to the state of the art, it is not obvious to a person
skilled in the art (Art.56 EPC). Previously disclosed standards documentation
may also be used to determine what is considered "obvious" to the person
skilled in the art.
The EPC Guidelines for Examination (EPC GL G-IV-7.6) provide more detailed information on the use of standards documents in
the patent examination procedure.
EPO patent examiners can consult comprehensive literature collections
from standardisation organisations including:
-
European Telecommunications
Standards Institute (ETSI)
-
3rd Generation Partnership Project (3GPP)
-
Internet Engineering Task Force (IETF)
-
International Telecommunication Union (ITU)
- Institute of Electrical and
Electronics Engineers Standards Association (IEEE-SA)
- Digital Video Broadcasting
Project (DVB)
- Open Mobile Alliance (OMA)
-
oneM2M - Standards for M2M and the Internet of
Things
-
International Electrotechnical Commission (IEC)
- Association of Radio Industries and Business (ARIB)
In addition to the final standards issued by the SDOs, the EPO databases also include the technical disclosures submitted in the course of the standardisation process. These documents are normally published before the final standard is agreed upon and are thus very relevant for the patent granting process.
The Office continually monitors developments to
identify additional SDO collections.
Other key elements in ensuring compatibility between the patent and standardisation systems are the general obligations for standards development participants to declare IPRs that might be relevant to the implementation of the standard (so-called Standards Essential Patents or SEPs), and to offer licenses of these IPRs on a FRAND basis (“Fair, Reasonable And Non-Discriminatory”).
Numbers of Standard Essential Patents declared at major Standards Development Organisations
Source: www.iplytics.com
Source: www.iplytics.com (click to enlarge)
Another of the EPO's major
contributions is the easy access to patent documents. The EPO has the largest
collection of patent information in the world, with over 130 million documents
from more than 100 jurisdictions. These are searchable online in the EPO's free-to-use
public databases (Espacenet), using inventor and applicant attributes, keywords
and the Cooperative Patent Classification's (CPC's) 260 000 technology codes.
So in addition to the
SEPs declared at standard development organisations (SDOs), implementers and
the public in general can find relevant patents, irrespective of whether or not
they have been declared as such.
Through its unique collection, the EPO is also able to put
together comprehensive "patent families", gathering patent
applications filed around the world for an invention, as well as collating
legal status information from over 50 patent offices, allowing you to assess whether
these patents are still in force.
To improve transparency around SEPs, the EPO provides a link to
its online patent information services from the European Telecommunications
Standards Institute (ETSI)
Intellectual Property Rights (IPR) declaration database.
As a result, it is possible to link
direct to a patent document in Espacenet from the ETSI database and to view its
content and scope. Additionally, the ETSI database automatically downloads patent family information (to indicate how widely a
patent has been filed) and INPADOC legal status data using the EPO's Open Patent Services (OPS), making it possible to ascertain the legal status of each patent
family member in the ETSI IPR database itself.
The EPO is closely monitoring "Fourth Industrial Revolution" developments both in Europe and internationally. The Internet of Things (IoT) is expected to connect some 29 billion devices by 2023 in complex interconnected systems, with new standards providing the essential connectivity and interoperability in almost every industry.
Representatives
from the EPO attend key conferences on standards and patents around the world,
as well as monitoring developments in other digitally-related patenting issues.
The EPO also participates as an observer in the IPR Committees of SDOs such as
ETSI, ITU, and IEEE-SA.
The EPO is continually liaising with other potential SDOs to optimise its approach.
