As preparations begin for the implementation of the unitary patent system, Rebecca Hill looks at the effect it could have on the European Patent Office.
Forty years ago, 16 countries signed up to the European Patent Convention. Then, in 1977, the European Patent Office opened in a temporary office in Munich’s Motorama building. By 1980 it had a permanent headquarters in the city, and that year it received 20,000 patent applications.
Still based in Munich, but with offices in Belgium, Austria, Germany and the Netherlands, the EPO has 38—soon to be 40—members, most of which are EU member states. Since its launch, it has assessed and granted hundreds of thousands of patent applications. According to figures released in March, it received a record-breaking 257,744 patent applications in 2012, 5.2 per cent up on the previous year and a dramatic increase from its early days.
As the patenting of innovations becomes ever more popular and innovation itself is increasingly seen as a sign of economic success, it is unlikely that this upward trend will stop. Benoît Battistelli, president of the EPO, says this forms the basis of a major problem faced by patent offices: ensuring quality amid a deluge of applications. “The patent system must not be a victim of its own success,” he says. “We have to apply our patentability criteria very selectively and very rigorously, but the more cases you have, the more difficult it is.”
Adding to the 7,000 staff, ensuring they are up to date with new technologies and granting fewer patents are all potential solutions. Battistelli says that better information must be provided on what is and isn’t patentable. Such advice is largely given through the national patent offices and local intellectual-property institutions in Europe.
At the moment, innovators can apply to a national office for a patent that covers only that country, or they can choose which countries they wish to be protected in through a European patent from the EPO. Soon, however, there will be a third level of patent available, through the unitary patent system.
This will allow an innovator to send in a single application for protection in all 25 countries that have signed up to the system. The aim is to reduce administrative and financial costs; Battistelli says they should drop by about 70 per cent, although the actual price tag for the unitary patent has not yet been decided.
Proponents claim that the unitary patent will boost innovation, but Bruno van Pottelsberghe, a former adviser at the EPO and member of economic think tank Bruegel, is sceptical. He says that having three levels of patent protection in Europe is “crazy” and that the unitary patent will have no effect on innovation until the national offices forego their autonomy and take on a purely advisory role. “The EPO has a fantastic business of granting and examining patents,” he says, but with three confusing layers of patent protection, Europe is in danger of losing international respect.
However, David Kappos, director of the United States Patent and Trademark Office from 2009 to 2013, disagrees. “The EPO enjoys a very strong and positive reputation internationally,” he says. “It’s true that there will be patents available on various levels, but that’s a recognition that Europe is a complex environment with many layers trying to work together.”
Similarly, Batistelli is not concerned. He says that international cooperation will continue to be a strong characteristic of the EPO. For instance, the EPO and the USPTO have recently created a system for classifying patents that has also been accepted by the patent offices in China, Brazil, Russia and South Korea. And the EPO, together with its counterparts in China, Japan, South Korea and the US, has recently launched a pilot fast-track patent scheme under which patents approved in one of the offices can undergo accelerated processing in the other four.
Such internationalisation is the way forward, Kappos says. He stresses that, despite having its hands full implementing the unitary patent system in the next two years, the EPO must not drop back from global harmonisation discussions. “It’s definitely in Europe’s best interests to play,” he says. “Globalisation is an inexorable force, so ignoring it is a perilous thing to do, because it will proceed around you if it’s ignored.”
There seems little doubt that the EPO will continue its work for the foreseeable future, although whether it will last another 40 years remains to be seen. Kappos says that an increase in membership numbers is likely, but van Pottelsberghe has more radical ideas about how the EPO should progress. For him, the EPO needs to become a branch of the European Commission if it really wants a major place on the global stage. Without this, he believes it will lack the necessary political power required for future international negotiations.
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