Joff Wild

The European Patent Office is a great European success that should be seen not only as a centre for patent granting excellence, but also as a means of generating European soft power across the world. So says the office’s current president Benoît Battistelli. Speaking exclusively to IAM at the EPO Patent Information Conference in Hamburg last week, Battistelli stated that the fact that developing economies such as those in China, Brazil and south-east Asia want to work closely with the EPO to build their patent systems is good news for European companies, as it makes it easier for them to protect and exploit their rights in those places; but, on top of that, it ensures that Europe’s influence is felt far and wide. “We should be proud that China is using our tools, methods and procedures,” Battistelli said, “it is a further demonstration that we are a world leader”.

There is no doubt that Battistelli is pleased about the direction in which the office is heading. With compromise between the European Parliament and the UK government on the EU patent now said to be within reach, the EPO could soon be issuing single patents that cover all EU member states, with the exception of Spain and Italy. On top of that, the office continues to set the standards when it comes to quality of grants – something that is clearly very important to Battistelli and his staff. But more than this, at least some of the perennial problems that have dogged the office in the past may now be working themselves out.     

Those who have followed the fortunes of the EPO for any length of time will know that historically there have often been tensions between its central management and the national patent offices of the member states of the European Patent Organisation. Subjects such as areas of responsibility and competence, as well as how the money raised by the office in application, registration and renewal fees should be shared out have often raised hackles; while animated, even bitter, discussions in the Administrative Council – in which heads of national patent offices sit with the EPO president to oversee the office’s activities - have been far from unusual. The bottom line has always seemed to be that when push comes to shove the interests of the EPO and the national registries are in competition – the more work the former gets, the less the latter have to do. This has an impact on their budgets, influence and jobs. As a result, in the past there has often been a high degree of dysfunctionality in the European decision-making process – to the detriment of actual and potential patentees across the continent.

However, it was clear last week that Battistelli believes times have changed. “Our relationship with the member states is excellent, it has never been better,” he told me. Citing a recent meeting of the Administrative Council in which he presented a comprehensive overview of how the EPO should be co-operating with the national offices, Battistelli stated that it received unanimous support. “The debate that we had a few years ago on the role of the EPO and the national offices is behind us. We have now reached an understanding based on the EPC that is very clear: the EPO and the national offices play complimentary roles,” he said. There was a time, Battistelli continued, when people imagined that the EU level would develop to the detriment of individual countries, but that has changed. “It is now clear that there is a two tier system – the European level and the national one,” he stated; each being as valid as the other.

The EPO’s role is not to take functions from national offices, Battistelli, explained; instead, it is to work with them and to support them in what they are trying to do. He identified three keys areas for cooperation: developing IT infrastructure; training national experts in both the public and private spheres (he mentioned a project aimed at increasing the number of patent attorneys in member states in which the numbers are currently low); and in framing patent awareness and information projects. “I was the head of a national office for six years [INPI in France] so I know the issues from both sides,” Battistelli said. “Each country should be free to develop its own national strategy and to work with us in the way that suits it best.”

What this means in practice, he continued, is that some will transfer certain competences to the EPO, while others will maintain a national capacity. So, for example, while France decided long ago to ask the EPO conduct searches and compile the subsequent reports for its national applications; the British have decided to do this themselves. Thus, while France has 80 examiners handling 17,000 or so annual applications, there is a much larger number in the UK handling approximately 20,000. The EPO is happy either way, said Battistelli; though he did not state which office he thought had made the right call.

When it comes to the office’s user community, Battistelli was also confident that relationships are improving. An important point, he stated, was that users could not all be bracketed together. “There are different points of view: big companies, SMEs, research institutions, patent attorneys  and so on. It would be wrong to talk of one user. We have to take into account all opinions,” he stated. That said, he believes that with various IT projects, on-going and completed, the office is more user-friendly than in the past, while examiners have also been encouraged to be much more responsive in their dealings with applicants. In general, discussions with users are more transparent than they were previously. “We don’t always follow what they want, but we will always take their suggestions seriously,” he said.

Battistelli acknowledged that the raising the bar initiative – designed to upgrade the quality of applications and disincentivise what he called “petty” applications – had proved controversial, but he was unapologetic.  However, he did say that should it become apparent over time that certain things were not working he was open to change – but that will not happen for a while. “We will have to wait one or two more years before we can make any serious assessments,” he said. However, in the final analysis the office’s job is to maintain the balance between applicants and third parties, and that is what it will continue to do, he stated.

In certain parts of Europe, anti-patent sentiment is on the rise – with pirate parties in various countries making electoral breakthroughs (though perhaps temporarily) and the mainstream press giving ever-growing coverage to those sceptical of the benefits the patent system brings. Battistelli, though, was sanguine about events. “The more successful something becomes, the more critics it will have,” he said. The best way to deal with them, he continued, is to deliver quality results. “We must be more and more rigorous. It has to be difficult to obtain a patent and only those who can fulfil a high level of conditions on things such as novelty and inventive step, should get one. Each patent that is granted should deserve it. We have to be sure, even though that is difficult when you are receiving 250,000 applications a year.”

However, there is more to it than that. It is also important to engage with the public and to make statistics and data available, so that people can make informed decisions. He mentioned the Economic and Scientific Advisory Board that the EPO has established composed of 12 senior figures from different stakeholder groups. They have their own budget and sit completely independent of the EPO, and have already produced reports on patent quality, fee and pricing structures, and are finalising one on patent thickets. On top of this, the EPO is working with OHIM and the European Commission to produce a report on the impact that IP has on the European economy, this will be along the lines of a similar study on the US produced by the USPTO earlier this year and should be ready some time in early 2013.