Network World: EU Patent Chief Paves the Way for Change

Author: Paul Meller, IDG News Service - Network World

IDG News Service - Adapt or die. That's the choice facing the European Patent Office, according to its president, Alison Brimelow.

Her task it is to prepare the organization for major change, she said last week in an interview, giving a bleak assessment of the patent system. "Throughout its history the patent system has been hotly contested, even resulting in violence, and consensus was remarkably rare," she said referring to the period before 1973, when European countries signed the European Patent Convention, which created the EPO.

The past three decades have seen consensus in Europe, but Brimelow, who has been EPO president for seven months, said the period of relative calm is coming to an end. "Thirty years ago it was possible to find consensus. Now there are more doubts about patents," she said.

She shared her view in a recent blog posting. During its 35 years, the EPO has often been criticized for being an ivory-tower institution dismissive of criticism, particularly from the biotech and computing fields. "The EPO came to birth in what was probably the only relatively upbeat period in patent history. So we have been perhaps conditioned by those circumstances to assume that challenge to the effectiveness and usefulness of the system is new and unreasonable," she wrote.

New strains on the global patent system are among the threats to the status quo. This is partly due to rapid advances in China and other developing countries, which are asserting influence over the system. There is also the debate over patents on life-saving drugs in the world's poorest countries.

"There are lots of voices, not just here in Europe, asking where next?" she said in the interview.

China and intellectual property are usually mentioned together because a Chinese firm has copied an idea patented elsewhere. That gives a false impression for two reasons, Brimelow said.

"Counterfeiting is a global problem; it doesn't help to pretend that it's a problem just in one or two places," she said. But since Chinese inventors are now more prolific than their European counterparts, their products are as likely to be counterfeited as counterfeit.

China is starting to prosecute intellectual-property infringements. The first notable case involved France's Schneider Electric. A Chinese court fined the company last September and ordered it to stop manufacturing five types of miniature circuit-breakers based on utility models held by low-voltage equipment maker Chint Group, in the eastern province of Zhejiang.

"The Schneider case illustrates the danger of not being able to understand Chinese prior art," Brimelow said.

The EPO has an agreement with its Chinese equivalent to develop an online automated translation system converting patents and utility models filed in Mandarin into English. A similar system exists for Japanese and Korean patents.

As patent authorities worldwide are forced to work more closely together, cultural differences become more noticeable, even between the developed, western patent approaches of Europe and the U.S.

Brimelow doesn't expect much convergence between the European and U.S. approaches any time soon. "They have a liberal view about what can be patented: anything under the sun," she said of the U.S. system.

Closer to home, there are fundamental divisions over what should be patented between two core member countries, Germany and the U.K.

"You see it in biotechnology, where we have a directive which has been implemented across the European Union. Put simply, you can get a patent in the U.K. which you cannot get in Germany. That leaves the EPO with an interesting problem which has yet to be resolved — where we're going to draw our line," Brimelow said.

Another issue is that there are equally stark and deep-rooted differences of opinion in the software industry, she added. She is dismissive of some of the criticism leveled at the patent system and specifically at the EPO from parts of the open-source and free software movements.

She also insisted that she is not going to convene an enlarged board of appeal to draw a clearer line between what software-related inventions are and are not patentable in connection with two related patent disputes in the U.K. that straddled that line, and ended differently.

In November 2006, Neal Macrossan, an Australian software developer, lost an appeal of the U.K. Patent Office rejection of his patent application. He wanted patent protection for a method of producing documents "for use in the formation of a corporate entity using a data processing system." On the same day, the U.K. Court of Appeal threw out a challenge against a patent owned by IT company Aerotel for a computer program that created a new prepay telephone network infrastructure for a group of computers.

The three judges presiding over the cases considered the first a business method and therefore unpatentable, while the second was seen as a patentable hardware change. The leading judge called for a referral to the EPO's appeals body to clarify the law concerning software patentability. While there are no plans for a referral, Brimelow said she wouldn't rule out that possibility in the future.

Unlike her predecessor, Alain Pompidou, Brimelow seems more willing to listen to EPO critics. She admits there are ways to improve the system to better suit the fast-paced IT industry. "Is the 20-year lock-up period always optimal?" she asked, referring to the 20-year life of a typical patent in Europe.

The fourth threat to the status quo of the past 30 years is less philosophical. There are serious logistical and financial problems facing the EPO. There's a year-long backlog of patents — roughly 200,000 — waiting for EPO examination.

Brimelow has been open about the financial problem. Last November she told the Financial Times that the EPO's pension and sickness insurance commitments could undermine its business model. "I have got to take active steps — 2020 is when it's really going to start to bite -- and it constitutes a major challenge," she told the newspaper.

Interviewed in Brussels between meetings at the European Commission and the European Parliament, Brimelow said she welcomes the recent surge in efforts among European Union lawmakers to create a Community Patent. A single patent, valid right across Europe, would replace the patchwork of national patent jurisdictions that currently exist. It would slash the cost of patenting and give patent holders greater legal certainty.

France's ratification of the London Protocol "will make patenting cheaper," she said. The Protocol reduces the number of languages a patent has to be translated into in order to have Europe-wide effect. It is due to take effect in March.

But she is more circumspect than others. Over the past three decades there have been many "false dawns," she said.

Half a year into the job, the new EPO president recognizes the challenges ahead. Her main task will be to change EPO culture enough to allow it to adapt to the changes in store for the patent system. She cited Darwin: "It's not the most intelligent or strongest, it's the most adaptable that survive."