GOWERS - THE PATENT OFFICE RESPONSE

The Patent Office has issued Chief Executive, Ron Marchant’s, response to the Gowers Review.

The Patent Office has welcomed the report and has undertaken to ‘revise its role in the following areas:

• Advice for UK Businesses as they seek to obtain and protect their rights both domestically and in other countries
• Fast track rights processing [Gowers called for a route for trade mark applications that could be examined on the absolute grounds in 10 days]
• Seeking to make progress on European and Community Patent proposals
  Continuing to improve patent quality
• Working with other Patent Offices, particularly the US and Japan, to make multinational patent processing simpler
• A better match between fees and the costs of the services covered by them
• Raising public awareness of the wider impact of IP crime’

The IPKat notes that Mr Marchant has maintained a discrete silence on what, to the IPKat’s mind, is a rather serious charge by Andrew Gowers. Gowers stated:

‘The position of the Patent Office as both a granting authority for IP rights and as a
tribunal where those rights may be challenged creates a potential conflict of interest. Officials
in the tribunal may be reluctant to over-rule the decisions made by their colleagues in
granting rights.’

As a result, his Recommendation 52 is

‘Ensure that under current arrangements in the Patent Office, there is a clear internal separation of responsibility between the granting of rights and
disputes over their ownership or validity. This should be achieved by clearly separating the line management structures.’

The IPKat can see that there is the potential for at least the appearance of institutional loyalty amongst the members of the Patent Office but, from his unscientific sampling of Trade Mark Registry decisions, he doesn’t have the feeling that the Office is acting in a biased way. He notes that Gowers’ comment has more wide reaching implications – for example, OHIM not only hears disputes internally, but also, appeals against contentious decisions are heard by OHIM employees as well. Finally, the IPKat points out that it’s actually pretty difficult to test for bias since if examiners are doing a good job, one would expect very few of their decisions to be over-ruled anyway.