Joff Wild

Two days after the release of the Commission’s communication on patents in Europe which made suggestions as to how to move forward, it’s time to round-up where we stand. First of all, I got an email from Ileas Konteas at Business Europe (formerly known as UNICE) pointing out this organisation’s press release on the subject. It reads:

EUROPEAN BUSINESS URGENTLY NEEDS LOWER PATENT COSTS AND GREATER LEGAL CERTAINTY

BUSINESSEUROPE has been waiting for a long time for today’s European Commission communication on a patent strategy for Europe, in order to move the patent debate forward.

What business needs is lower patent costs as well as greater legal certainty. This is why BUSINESSEUROPE fully supports ratification of the London Agreement as well as progress on the European Patent Litigation Agreement (EPLA): two initiatives mentioned in the communication. The London Agreement will reduce translation costs by roughly 45% and bring substantial savings for companies. EPLA is an important initiative to develop a common litigation system providing consistent and efficient enforcement of patents moving away from the current divergent and conflicting national systems.

According to Ernest-Antoine Seillière, President of BUSINESSEUROPE: “I hope that this initiative will help to bring us forward. Companies have voiced what they need and it is now time for action. Member States cannot claim that R&D and innovation are key for economic growth and at the same time block progress on the patent agenda”.

BUSINESSEUROPE will actively participate in the upcoming debate, which is key for Europe’s innovation. Innovation together with R&D are central to two other initiatives to be adopted tomorrow by the European Commission, namely the Green Paper on the European Research Area, which is intended to give new impetus to the European Research Area, and a communication on knowledge transfer. BUSINESSEUROPE will also actively provide input to these processes.

I have been very hard on industry in Europe for its lack of resolve in pushing for patent reform, but Business Europe stands out as one of the few organisations that has been willing to put its head above the parapets. People such as Thierry Sueur and Klaus-Dieter Langfinger have done a great deal of work in trying to influence the debate and put across a perspective from the European business community. They deserve recognition and a great deal of praise. The trouble is that there are so few others helping them out; and what they have lacked, and continue to lack, are statistics and studies to back up the case the are making.

I keep on saying it, but it is such a vitally important point: to get change those that support reform have to realise they need to persuade politicians who know very little about patents and patenting. What they do understand, however, are issues such as jobs, economic growth and future prosperity. The debate has to be conducted on those terms. Groups such as the FFII understand this perfectly, just as they understand that there are certain emotional arguments – such as bashing the US – which also go down well when seeking to influence European political opinion. If European industry as a whole really does want and need patent reform – and I believe that, in general, it does – it has to get a lot more savvy, and it has to be willing to invest a lot more time and money to achieve its aims.

There is a strong case for patent reform to be made, but very few people are making it at the moment. In the US, patent reform is also a hot topic. As a journalist, I can find the position industry is taking very easily. I can go to this website, or this one, or this one, or this one, for example. All are clear, easy to access and have a strong message – whether you agree with it or not. There is nothing similar in Europe, not even on the Business Europe site. In fact, the one organisation whose views on patent reform and IP generally are easy to track down is the FFII. And people wonder why IP gets such poor coverage in the European press!

When people complain about politicians in Europe not getting IP in general and patents in particular, they should ask themselves why that is. For my part, I don’t think it is because policy makers are incapable of understanding, I think it is because they are not being given the tools they need and they are not being engaged on the right terms. That is a failure of European industry and of others who support reform. I am afraid there is no-one else to blame.

Turning now to a more substantive issue; the more I think about it, the more convinced I am that if France, the UK and Germany all spoke with a united and firm voice on patents, the likelihood is that things would start moving very quickly. My understanding is that of these three countries, it is the French who currently have the most difficulties and that a lot of it boils down to issues around the French language. Basically, the French are worried that their language will be the loser if any pan-European patent system is introduced because most people will file their patents in English or German, which means most cases in a unified patent litigation system will also be in English or German. Politically (and remember, it is all about politics), it will look very bad for any French president or minister to sign up to something which, practically speaking, diminishes the status of French.

Whether we like it or not, this is the reality. So, the issue for the Germans and the British is what they can do to alleviate French concerns. My suggestion is that they bite the bullet and agree to French being the official language of a unified European patent system, as long as there are built in provisos which allow for the wide use of other languages. In effect, what this would mean is that the official language of Community patent prosecution would be French and that the official language of a European patent court would be French, while other languages, such as German and English, could be used as appropriate.

It is not as far-fetched as it may sound. This blog reported back in February, there is something called the Committee for the Language of European Law which is advocating the use of French as the official language for European justice on the basis that it has a precision which other European languages lack. I am sure that if the Germans and the British were to support its aims with regard to patents, all of a sudden the French government would get a lot more enthusiastic about reform. Of course it would not be as easy as just doing that, but I cannot help thinking it would solve an awful lot of problems, especially as it could be portrayed as a major triumph for whoever wins the French presidential election later on this spring. With Germany, the UK and France all strongly on-side the momentum for change would be strong; so, if the Germans and the British really do want to get moving, why not make the magnanimous gesture necessary?

Whatever documents the Commission brings out, the future of Europe’s patent system is going to be decided in the member states’ national capitals. As things stand, there seems to be little on the table that will make much difference to the current entrenched positions that exist. For this to change, industry is going to have to get much more deeply involved in the process and those governments that do support reform are going to have to reach out to those that have their doubts. The opportunity is still there to create some momentum. The question is: does Europe have the imagination and flexibility necessary to seize it?