Joff Wild

Sometimes you just have to shake your head and ask yourself whether the person quoted really did say what they are reported to have said; and, if they did, whether it is actually true; and, if it is, who on earth decides on the patent strategy in the company where that person works. I have just had such a moment. Taken from a 21st May report in Science Business is this little beauty: 

“We file only in the US, for reasons including the cost of filing and litigation in Europe as well as the complexity of the system here. Within the EU patent reform, it will be important to consider mechanisms to ensure high-quality patents,” said Kalliopi Spyridaki, EU affairs manager at SAS.

If Ms Spyridaki has been misquoted, then I unreservedly withdraw what you are about to read. If she has not been, and she has understood her company's patenting strategy correctly, then heaven help investors in SAS. At some stage their company could quite easily find itself rudderless and up a smelly creek without a paddle as it seeks to protect its position in Europe.

SAS is a software company - the largest privately owned one in the world, it claims. Software patent protection is hard to get in Europe, but it is not impossible. To rule it out on the basis of expense is ridiculous. First of all because however much it costs to obtain a patent via the EPO, or national patent offices in Europe, that amount is insignificant when compared to the potential loss of market share a decent patent could guard against. As for the point about enforcement, it is just not true. Even in Europe's most expensive jurisdiction, the UK, it is very unlikely to cost more than £1 million ($1.5 million) to litigate a case. In Germany, France and Italy you are looking at perhaps $200,000 to $300,000 at the most. In the US, the latest I saw was that on average getting a first instance decision in a big case will give you little change from $5million. In other words, SAS could litigate a case in the UK, France, Germany and Italy, probably throw in the Nordic countries and the Netherlands, and still spend less than it would cost to litigate in the United States. But even were it to cost $10 million and you won, it would be money well spent if you ended up fighting off a competitor and protecting or establishing a revenue stream.

Deciding not to engage with the patent system because of the cost is a failure of management that only has the potential to harm your business at some stage further down the line. No ifs, no buts. When you are the size of SAS it becomes inexcusable. End of story.