The IPKat goes to see the President

Last night the IPKat went down to London, not to see the Queen but to see the President of the European Patent Office, Benoît Battistelli at UCL (mentioned here on the EPO website, and now with the full text of the speech). M. Battistelli was in London to ask, and then answer, two questions. (1) How can Europe be a key player at a global level in the patent field? (2) What is the role of the EPO? The IPKat was fairly certain he knew the answer beforehand to the second one, but wasn't quite clear about the first one, and was pleased to have it answered.

M. Battistelli had much to say on the subject of how Europe not only can be a key player at a global level in the patent field but also how the EPO in particular is playing a key role throughout the world at the moment. A selection of facts and statistics were brought out to warm the audience to the theme of what the EPO were all about, including:

• The EPO is a central granting agency that can (theoretically, at least) grant patents that cover up to 40 countries including a total of 600 million people. Language difficulties, however, made getting this maximum protection expensive and complicated.
• 210,000 applications were filed in 2009, down 8% on 2008 but rising again after a 4% increase in the first 10 months of 2010, with growth expected to continue in the years to come.
• Pendency times for search reports with written opinions compared well with other patent offices, with the EPO tending on average to get them out within 6 months for first filings. For second filings the numbers were higher at around 27 months, but compared to between 40 and 60 months for other offices.

What was apparently most important as far as M. Battistelli was concerned was to improve quality, which is a hard thing both to define in patents as well as to achieve. The aim of the EPO was to obtain maximum legal certainty so that patents could be granted that were as legally secure as possible. The EPO was not, and should not be, concerned about the economic value of any particular invention, which was purely the business of applicants. The 'raising the bar' initiative of his predecessor was discussed, a sometimes controversial scheme having an overall aim of being more selective in what was granted through being more rigorous in applying existing patent law, as well as tightening down on some rules (which has certainly caused some controversy among the patent profession recently).

A particular problem the EPO faced, in M. Battistelli's view, was that it could be seen to be acting more for the applicant's side, when what should happen is that a balance between applicants and third parties had to be struck in each case. Economic players were much more likely to be third parties than applicants, even in the case of the large patent filing applicants. As a result, the interests of third parties had to be taken into account, and applications granted only for those inventions that really deserved the monopoly rights that resulted, bearing in mind that such monopolies were an exception to the general rule of free markets.

Costs had to be 'carefully controlled', which meant that applicants should not fear added costs and should also not face unnecessary additional burdens. M. Battistelli added that there was no intention to increase fees, bearing in mind the ability of a monopolist to keep raising their prices (but he unfortunately gave no particular timescale for how long this would apply). The EPO's apparent mission at the moment was to not add unnecessary costs to the already expensive process of granting a patent. [At this point, the patent attorneys among the IPKat's readers might have something to say, given recent developments.]

There was some discussion of current projects that the EPO was involved in, which included those within Europe such as the ongoing discussions regarding an EU patent system (the IPKat is not holding his breath on this one). Languages, of course, were the most difficult issue. M. Battistelli considered that the solution was to use more machine translations. An interesting point made was that there is already a very large database of professionally translated patent documents, which could be used as source material for much improved machine translation systems. The purpose of all this would be to facilitate access to content, which would be useful to examiners as well as other users of the system, particularly as countries such as China become ever more important as sources of prior art.

The EPO has over the years developed its own system for searching and examining applications, and has been successfully exporting these systems both within Europe to national offices and to the rest of the world. Various IT tools for examination developed at the EPO were being used at the national offices in Europe, and the EPO was exporting the European model elsewhere, one notable case being China, where the system developed at SIPO over the last 25 years was largely based on following the European model.

Finally, mention was made of the recent and ongoing fashion for patenting 'green' technology, to which the EPO has contributed their assistance. In particular they helped out at last year's Copenhagen summit to try to defuse the argument about whether patents helped or hindered development of such technology [an argument that was largely had, as far as the IPKat could gather, between people who knew very little about patents and even less about real science]. The answer was, of course, a mixture of both and that patents were not the problem but were part of the solution. There was a strong concentration of patents in large industrial hands, which was to be expected, but there were some surprise findings in the EPO's recent report on the subject, such as the level of innovation from countries like Brazil, China and India. The EPO has now created a new class for green technology, specifically relating to energy. Whether this means anything in the long run is yet to be seen, in the IPKat's view.

In conclusion, M. Battistelli's main point was that the duty of the EPO was to ensure that the economic tool of granting patents for inventions was delivered as efficiently as possible.

The IPKat thinks that M. Battistelli came across as a President with a very clear idea of a central mission for the EPO, which certainly sounds like a good thing. The IPKat does not necessarily agree with every initiative that the EPO comes up with and, along with one or two others in the audience, thinks that the process leading up to rule changes in particular could be made a bit more transparent and consultative. He does, however, think that M. Battistelli should do well in his time as President and wishes him the best of luck.