Joff Wild

Over the last two days, this blog has had a very welcome correspondent who has shared his views on what he saw and heard at last week’s EPO CII patents conference: Rodrigo Calvo de Nó (who is, I think, with Gevers - if this is the wrong Rodrigo, apologies!). His most recent post was in response to my blog yesterday which accused some Europeans of indulging in anti-Americanism and complacency at the event. Below is what he has to say and underneath is my response:

In my own impression [of the conference], the atmosphere at the conference was neither complacent nor particularly anti-American (it could hardly be, since there was a strongly American contingent present). It was rather introspective on all sides. As Axel Horns mentions, there was a certain rift between IBM and other industry players. On the "opposite" camp, there was a feeling of tensions between a more hardline EFF and an increasingly pragmatic FFII. And one also got the impression that even within the EPO things were far from settled regarding the interpretation of Art. 52(1) EPC. I would say that there was (almost) general agreement that the subject is far too sensitive and complicated for yet another big "ideological" debate and that instead some quiet discussion, and a very big deal of case law, will be necessary to reach some kind of consensus before moving forward.

The only significant mentions of US practice were an EPO complaint that much of the criticism that has been directed towards it for granting "trivial patents" often turned out to actually relate to US patents, and some industry comments that differences in litigation made "patent trolling" much more difficult in Europe in any case.

Otherwise, the case for a more liberal granting practice in Europe was repeatedly put forward by several panelists and intervenants during the conference. The range of views available was actually a very pleasant surprise.

As for what was achieved, nothing much indeed, except for a civilised exchange of views and the opportunity to propose and listen to a number of novel ideas. Perhaps that is a valuable enough achievement, after all. 

Rodrigo - thanks for your comments, which are very welcome. I am pleased to hear that the anti-Americanism I detected in the EPO report on the CII patents event was, in fact, not present. However, I was somewhat depressed to find that this report, which was not more than a page long, referred to at least two criticisms of the US patent system, when there seems to have been an awful lot of other things that could have been mentioned instead. From what you say, the criticisms were not representative of the day as a whole, so why bring them up?

That the EPO report chose to focus on negative comments about the US, rather than on other issues, is, I believe, indicative of a certain way of thinking in Europe. That is, that when it comes to issues of quality the EPO is best and is certainly better than the USPTO, and that this is something that everyone in Europe should be very proud of. Obviously, to an extent this is a glib over-simplification and not everyone in Europe holds such views, but I do think that a significant strand of such thinking does exist – certainly I have detected it on numerous occasions in conversations with people that work at the EPO, in private practice and in industry.

Now, I am not denying the EPO’s commitment to quality is a good thing – obviously it is - but we should not lose sight of the wider picture. When it comes to facilitating R&D, investments in start-ups, job generation and technological breakthroughs, I am afraid the US leads the way; and if you ask people in the US why this is they will say that among the most significant factors is the country’s patent system. This is why so many companies - with, most significantly from Europe’s perspective, SMEs and the university sector leading the way – are very dubious about the patent reform proposals currently before Congress.

It’s not just patent trolls that like the US system as it is, many SMEs and universities believe it helps them and gives them an ability to compete on more equal terms with the big players. Ironically, it is many of the larger corporations in the US who are in favour of the Patent Reform Act, legislation that would, if enacted in its present form, bring US patent practice much closer to European practice in many ways – first-to-file, oppositions and lower damages, for example. Without taking sides on the merits of the views, the fact that in broad terms the camps break down in that way seems to me quite telling.

I am not for one minute suggesting that Europe could or should adopt a US-style patent system. But what I am saying is that it may be appropriate for Europeans to understand just how the US patent system has helped the US reach its current technological and economic position, and to stop congratulating ourselves for our commitment to high standards, when it has actually done very little to help develop a dynamic, innovative European economy. Maybe I was wrong in accusing some Europeans of anti-Americanism when it comes to patenting; perhaps, instead, a misplaced European superiority complex is a more appropriate description.

On your point regarding whether we need a new CII Directive or not, I should say I am not a lawyer and so maybe it is the case that what we need now is a time for reflection and some more case law. However, my worry about such a period is that it seems that case law in different parts of Europe may develop in different ways –certainly there seems to be a significant divergence between the UK courts and the EPO right now, for example. The longer such a situation persists, the more uncertainty there will be. Of course, uncertainty is very good news for lawyers, but not such good news for people in industry and, therefore, the European economy. On such a basis, two years of hard fighting may be preferable if, at the end of it, we get to a defined position that everyone understands.