Joff Wild

Back in September 2009 I wrote a blog that stated the best way to get European SMEs to engage withthe patent system is to ensue there are more patent atorneys out there looking for their custom. It provoked quite a few responses. In the most recent issue of the CIPA Journal, published by the UK's Chartered Institute of Patent Attorneys, I have written a longer opinion piece that expands on the points I made back in September. For those who do not get the Journal, here it is ...

There is no doubt that EU politicians were very pleased with themselves after voting to approve the principle of a unitary European patent system on 4th December in Brussels. "This business-friendly deal will make patenting and innovating easier and more affordable for British companies. In particular, innovative SMEs will have more flexibility when choosing how to patent across Europe," said the UK's IP minister David Lammy. "Establishing an EU patent and a single European Patent Court is the single most important measure for promoting innovation in Europe. In view of the major simplifications and cost savings, this is, of course, also particularly important for small and medium-sized enterprises," said Sweden's Minister for Justice Beatrice Ask.

Like many of their political colleagues, as well as numerous observers of the European patent scene, both Lammy and Ask have concluded that a relatively inexpensive, one-stop patent shop will encourage more European SMEs to embrace the patent system - something that all the evidence shows they are currently unwilling to do.

One of the stated aims of the European Union is to be the centre of the world's knowledge economy. That means creating and nurturing the innovative skills of the 500 million people who live within its borders so that the 20 million companies, the vast majority of them SMEs, which currently operate inside the EU can prosper and grow. If this happens, it should lead to more jobs, greater wealth-creation and higher standards of living. Most reading this article will agree that in order to create and nurture innovation - and certainly in order to turn it into something practical, scalable and sellable - the patent system has a crucial role to play.

On the face of it, therefore, Lammy, Ask and co have a point. It is currently expensive to get patent protection for the whole of the EU; and if, God forbid, it should ever come to multi-national enforcement, the price quickly becomes prohibitive, while the results can be contradictory. Logically, a relatively cheap single patent and less costly litigation should lead to more patenting among Europe's SMEs. And maybe it will, at the margins.

However, my belief is that if Europe's leaders really want to encourage greater engagement with the patent system, they are looking in the wrong place. Instead of focusing on the system itself, they need to be paying attention to the people that are integral to linking that system to its users; the kind of people that read the CIPA Journal; yes, you patent attorneys. Here's why ...

In October 2009, I had a look at the website of the Institute of Professional Representatives before the European Patent Office. As I am sure you know, on there you can look up the details of all European patent attorneys, as well as just how many there are. And after I did a little poking around I found that number; and it shocked me. There are, I discovered, just 9,250 patent attorneys currently authorised to prosecute applications at the EPO. That's 9,250 out of a total population of 500 million Europeans. When you bear in mind that over half of these, 4,956 to be precise, are based in either the UK or Germany (there are, for example, more European patent attorneys in Munich than there are in the whole of France; and more in London than there are in all of Italy and Spain combined), then - quite frankly - that number becomes terrifying.

If Europe really is going to be at the heart of the 21st century's innovation economy, can we really do it on the back of the efforts of under 10,000 patent attorneys? I just can't see how. Not because there will be a shortfall in the number of people able to prosecute patents at the EPO, but because it is not possible to rely on just 9,250 people to give the accurate, patent-related business advice innovative European companies need in order to manage and exploit their IP rights to maximum effect. Remember, too, that at any one time a large proportion of that 9,250 is not going to be practising or will be working inside corporations and so not in a position to represent anyone but their employers. So, the reality is that we are talking about a far lower number actually being available for instruction.

Patent attorneys are of fundamental importance to the patent system. The first contact the vast majority of European SMEs have with patents is via an attorney. The advice they get, the way in which they are spoken to and the money they are charged will make a lasting impact on how they perceive the system and can affect their willingness to use it. But outside of countries such as the UK and Germany (and perhaps some smaller jurisdictions such as Sweden and the Netherlands), attorneys are not easy to find. Those that are out there are hardly fighting back the competition; so the incentive to offer high-quality, business-focused advice is rarely going to exist, and neither is the need to be flexible with pricing.

Even in the countries with the highest proportion of patent attorneys, it is not as if you can find one on every street corner. Here in the UK, I have had a number of conversations with practitioners who will not see lone inventors, for example, because they are regarded as more trouble than they are worth. And if it happens in the UK I would be very surprised if it does not happen elsewhere. As things stand, black-balling lone inventors probably makes good business sense as most will not be worth the bother. Why worry about them, even though one or two may have something worthwhile on their hands, when you know a more lucrative and less time consuming client is probably going to walk through the door in the not too distant future? But in this case, is what is good for patent attorneys also what is good for Europe? I am not sure that it is.

It seems to me that if we are really serious about patents in the EU, what we need to be talking about is how we get more patent attorneys on the ground. My belief is that patent attorneys are the people best placed to give SMEs business-focused, strategic IP advice. However, I also believe that many will only do so when they face more competition and so have to go out into the market to drum up business by offering something that their rivals do not.

What needs to come much more to the fore is the ability to look at a business, its assets, its products and its people, and to help ensure that the business has a patent strategy (if, indeed, it needs one) that will give it the best chance of success. I know that there are patent attorneys out there now who give this advice , but let's be honest here: there are a large number who do not and prefer, instead, just to procure patents on behalf of their clients. Now, there is nothing wrong with that - but from the perspective of a Europe that wants to encourage scalable innovation and intelligent SME engagement with the patent system it is not very helpful.

A Community patent and a single patent court are attractive to those who already use the patent system, but I am not sure how far they will encourage a whole new group of SMEs to start to engage. What might, though, is affordable advice tailored to their specific needs. And that, I believe, means getting a whole lot more patent attorneys out there in the field. Until this happens, I fear that there will continue to be a disconnect between the European SME sector and the patent system.

In short, we need more patent attorneys across Europe, because more will mean more competition between them; which, in the end, will mean a much better service for clients. If I were a European policy maker, working out how to do this is what I would be prioritising.