Operation successful, patient in suspended animation

Given the sudden flurry of activity over the adoption of the new European patent package, which now looks pretty unstoppable, this Kat thought readers might be interested in the following opinion piece which he wrote for the most recent issue of The Patent Lawyer Magazine, which was published last week.

"Operation successful, patient in suspended animation

Lawyers, medical practitioners and accountants are very different species; in fact, in the portion of the world in which patents are most highly valued, Law, Medicine and Accountancy might almost be described as the three major religions of today. The education, training and professional ethos in each case is inculcated through years of painstaking study, attention to detail and an appreciation that the skills which are acquired are not an end in themselves but are learned in order that they be put at the disposal of others.

Each profession has its general practice and its specialisms. Thus medical practitioners may be divided between the preventive and the curative; accountants may be forensic, descriptive or predictive; and lawyers may be contentious, non-contentious or sub-contentious. But in each case the overriding interest of the patient or the client is paramount.

The politician stands aloof from these considerations. He is there to make decisions that cut across the three great religions since their priests and adherents have neither the power nor the facility to do so. How to save a patient’s life is a doctor’s dilemma; how much it costs to do so is for the accountant; whether failure to do so is manslaughter is the lawyer’s domain. But whether to save one patient’s life expensively or treat another half a million patients for athlete’s foot, or whether to build one new hospital to cure the sick or twenty sports centres to keep the healthy fit and well — these are the decisions which the politician takes, on political, philosophical, utilitarian or other grounds that form no part of the disciplines of law, medicine and accountancy.

Let's face it: most of what we take for granted
in terms of our pampered lifestyle comes from
the patent system, with all its faults ... 

In this light, the process of evolving a new patent system becomes instantly more intelligible. This is so whether the system is domestic, as in the case of the America Invents Act, or regional, as in the case of the European unitary patent and unified patent court. Expert lawyers, including patent attorneys whose years of specialised expertise have helped bring about pretty well every piece of electronic gadgetry, everything under the bonnets of our cars and every item in our bathroom cabinets —the material dimension to what we call our quality of life, can tell us what is right about the current system and what is wrong with it. They can also tell us what they think is right or wrong about the various proposals to amend it. Likewise, accountants can tell us how expensive the current system if one’s aim is to aggregate, litigate or negotiate patents, and how their presence or absence affects inward and outward investment, commercial activity and competition. But they cannot tell us whether to replace the old system with the new because we have not given them the power to do so.

In the United States the democratic process appears to be a relatively transparent one in which the legislative branch of government is placed on a pedestal where elected representatives of the people can be easily targeted, lobbied, influenced and, occasionally, educated. It appears to be the focal point for the formation of legislative policy and the translation of that policy into law.

In the European Union, the situation is very difficult. With a relatively feeble and remote Parliament drawn from 27 Member States, manned by representatives who have in many cases failed to distinguish between responsibility for an international community and national interest, the Commission provides a strong and unifying force which is not answerable to an electorate and which is correspondingly difficult to influence or educate. How many readers of this paragraph, without resort to their favourite internet search engine, can name any of the personnel within the Commission, or indeed within Parliament, who have helped shape the radical proposals that are now coming close to adoption?

This is why, both in the United States and in Europe, patent professionals and their clients have fought long and hard for proposed patent law amendments to be scrapped or modified, and why their voices have often been ignored by the politicians. However it appears that, from the distance, the effect of this was quite different. To the distant observer it appeared that in the US the patent professions were relatively equally divided between those in favour of the proposed amendments and those who were not: whether they listened attentively or tossed a coin, the politicians had no option but to offend. In Europe, while it is true that the new package of reforms has some support, the preponderant weight of informed professional opinion has been hostile.

Will Europe’s new system work? It will be decades before we find out. In medical terms, the operation, the legislative objective of securing a new patent system will be secured —but will the patient recover from the operation?"