Forum on the future of IP vows to push ahead with Community Patent

Enterprise and Industry Commissioner Günter Verheugen, German Chancellor Angela Merkel and President of the European Patent Office (EPO) Alain Pompidou were among those making passionate pleas for an overhaul of Europe's system for protecting intellectual property at the Europ...

Enterprise and Industry Commissioner Günter Verheugen, German Chancellor Angela Merkel and President of the European Patent Office (EPO) Alain Pompidou were among those making passionate pleas for an overhaul of Europe's system for protecting intellectual property at the European Patent Forum on 18 and 19 April.

Nobody is now in any doubt that vast changes are afoot in the protection of intellectual property (IP). Indeed, the EPO has recently completed a project outlining four potential scenarios for patenting, with business, geopolitics, society and technology as the individual dominant drivers.

Views on how IP can and should be protected in the future differ, but all speakers at the forum in Munich were in favour of moving towards a Community patent for Europe, and as quickly as possible.

It already costs 11 times more in Europe than in the US to file for a patent due to fragmentation, while globalisation and the emergence of new competitors suggest that Europe will find it even more difficult to protect ideas and remain internationally competitive in the future.

'Any politician in Europe who thinks that this is right should come and talk to me. It's not right,' said Mr Verheugen. 'Those who have stood in the way of an efficient patent policy are not only damaging Europe, they are damaging themselves,' said Mr Verheugen in a forceful address.

While discussions on establishing a Community patent have been underway since 1975, disagreements over the language regime that it would involve have been a major stumbling block.

Mr Verheugen is however found more reason for optimism this year than in recent years. He told journalists that he expects to see a Community patent within five years.

'A Community patent would only be of worth if it meets certain criteria. It must be unified, provide legal certainty and value for money. It must tick all of those boxes,' said the German Chancellor. A system in which patent claims need to be translated into all Community languages would not provide value for money, IP stakeholders have long argued.

'We are proud of our diversity in Europe, but when it comes to the Community patent, we have to decrease that diversity to some extent. We can't leave things as they are, we have to push forward to some extent,' said Ms Merkel.

This view was echoed by the Commissioner, who noted how he is 'continuously surprised that we [the Member States] often work together where it's not absolutely necessary to do so [...] but don't where it's vital. IP is a good example, along with foreign and security policy.'

The push forward is coming from two angles: the EPO and the Commission are urging signature of the London Protocol, and the Commission has adopted a communication on laying the ground for a Community patent by creating a single EU-wide judiciary with competence for litigation.

If signed, the London Protocol will waive, entirely or largely, the requirement for translations of European patents to be filed in their national language. In practice this would mean that European patent proprietors would no longer have to file a translation of the specification for patents granted to an EPC Contracting State Party to the London Agreement having one of the three EPO languages (French, German or English) as an official language. Where this is not the case, they will be required to submit a full translation of the specification in the national language if the patent is not available in an EPO language. The agreement would lead to a drop in translation costs of up to 45%, or some €3,000 per application.

EPO President Alain Pompidou said at the forum that he expects the London Protocol to be signed by the end of the year.

The Commission's communication proposes the creation of an integrated EU-wide jurisdictional system for patents, which would combine elements of both the draft European Patent Litigation Agreement (EPLA) aimed at reducing litigation costs and of specific Community jurisdiction for patent litigation based on the EC Treaty. Member States have in the past differed over which litigation system should be used.

The system would set up a number of tribunals to handle patent disputes around the EU, including infringement-related claims. Appeals would be heard by a single court, potentially the European Court of First Instance.

On the litigation issue, Mr Verheugen said: 'It is strange that we have a Europe-wide system for patent applications and decisions, but we don't have a joint litigation system.'

The communication was based on an open consultation, and has received a mixed response. Most criticisms have focused on the avoidance of the translation issue, but as Mr Verheugen pointed out in Munich, the Commission's 'array of measures should not draw attention away from the fact that the Commission has relatively little power over intellectual property, and even less over patent law. It is up to the Member States to create the conditions for innovation to flourish and be protected,' he said.

In the meantime the EPO has been busy investigating how the patenting system is likely to change in the future. 'Whatever the future holds it's going to require a rapid and robust adaptation for a changing environment. The EPO must reinvent itself to be a key player,' said Professor Pompidou. The 'Scenarios for the Future' document was described by the EPO President as 'intellectually-bracing', and said that this consciousness-raising on the part of the EPO will demonstrate the office's maturity as it celebrates its 30th birthday.

Rafael Ramirez from Oxford University acted as a consultant during the elaboration of the four scenarios. He explained that 'scenarios are about what happens to you, and not what you make happen'. He added that he has been working on scenarios for 27 years, and that the IP scenarios are 'as good as you can get'.

The four different scenarios see business, geopolitics, society and technology as the drivers of patenting.

In the 'Market Rules' scenario, new forms of subject matter, including services, become patentable and more players enter the system. The balance of power is held by multinational corporations with the resources to build powerful patent portfolios, enforce their rights in an increasingly litigious world and drive the patent agenda.

In the 'Whole Game?' scenario, the developed world increasingly fails to use IP to maintain technological superiority, while new entrants seek to catch up in order to improve their citizens' standard of living. This scenario sees nations and cultures competing, with IP becoming a powerful weapon. The new entrants become increasingly successful at shaping the evolution of the system, using it to establish economic advantage, and adapting the rules as their geopolitical influence grows. Enforcement becomes more and more difficult, and the IP world becomes more fragmented.

The third scenario, 'Trees of Knowledge', sees popular movements (coalitions of civil society, businesses, concerned governments and individuals) as the key players. The coalitions' focus will be ensuring that knowledge remains a common good.

'Blue Skies' is the fourth and final scenario, and involves a split in the patent system. The key players are technocrats and politicians, who respond to global crises. Complex new technologies based on a highly cumulative innovation process are seen as the key to solving systemic problems such as climate change. The diffusion of technology in these fields is of paramount importance, and the IP needs of these new technologies come increasingly into conflict with the needs of classic, discrete technologies.

Participants at the forum recognised the very real possibilities presented by these scenarios, although some described the pictures as fatalistic.

The next President of the EPO, Alison Brimelow, is anything but fatalistic. She pledging a follow-up to the scenarios project. 'The problems are not going to go away. I made you a promise [...] we will engage in what comes next,' she told the forum.

Europe's key decision-makers are also being proactive. 'The current system is due to our own short-sightedness. The least we should expect is to repair the mistakes we have made. We know our weaknesses, we know what needs to be done,' said Mr Verheugen.

For her part, Ms Merkel spoke of a forthcoming EU charter bringing in a voluntary code of practice on IP, and promised that the German EU Council Presidency would be 'unstinting' in its efforts to push for both the implementation of the London Protocol, and then a Community patent. 'Where there's a will there's a way,' she said.

Countries

Germany