Professor Alain Pompidou,President of the European Patent Office, EPO Online Services Annual Conference, Lisbon, 4 October 2006, Opening address

Professor Alain Pompidou

 

 

 

 

 

 

 

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President of the Administrative Council of the Portuguese Office for Industrial Property,

President of the German Patent and Trade Mark Office,

President of the Industrial Property Office of the Czech Republic,

Ladies and Gentlemen,

1.                                Introduction

1.1.                          Lisbon

 

It is an honour and a pleasure for me to open this fifth annual conference on the online services of the European Patent Office. I am glad that the participants are so numerous and so eminent, and I am confident that the interesting and stimulating programme of activities for the two days ahead of us will help to enhance and reinforce the use of online services in your daily work as industrial property professionals.

Allow me first to warmly thank the Portuguese government and the INPI for welcoming us here. The EPO is a key player in Europe’s knowledge economy, so meeting here in the birthplace of the European Agenda has a special meaning for us.

I have been participating in meetings with the INPI over the last two days, discussing in particular the co-operation between the INPI and the EPO. These few days in your company, Mr Campinos, are proving particularly fruitful, in addition to being a genuine pleasure. Please convey our thanks to your staff for their invaluable help in preparing this event.

1.2.                          Online services

 

Online services are an important element in the EPO’s product range. They do indeed reflect its steadfast quality strategy, underline its customer orientation, and help to optimise the quality of its work in search and examination, and also its punctuality.

By looking first at how the idea of "enabling partnerships" applies to the European patent system, and then commenting on some recent developments in the patent world, I wish to emphasise that the patent system is a major European asset and to advocate its greater use for the benefit of Europe’s citizens and economy.

2.                                enabling partnerships

 

This year’s theme, "enabling partnerships", has a double meaning. On the one hand, it implies making partnerships possible and easy. On the other, it is about creating partnerships that are themselves enabling for the partner, that open up new opportunities. In both senses, this theme is particularly suited to the EPO.

2.1.                          The patent system is AN ENABLING partnership between society and the inventor TO PROMOTE the knowledge economy

 

Firstly, the patent system itself is an enabling partnership between the inventor and society. A temporary monopoly is granted to the inventor in exchange for the publication of his invention.

Obviously, the system is enabling for the inventor, who can safely exploit the invention. But this individual advantage is a collective one as well, as innovation is encouraged and justly rewarded. Publication is a major advantage for society. As the invention is legally protected, secrecy is no longer either necessary or permitted. Therefore, patents contribute to the distribution of knowledge, which in turn is a facilitator and a catalyst for further innovation. Moreover, the publication of pending applications also helps companies to better focus their research and development efforts, limiting the risk that they may engage in research in which competitors are already involved.

A fair reward for innovation, the dissemination of knowledge and appropriately targeted research are the three basic elements that make the patent system an "enabling partnership" between society and inventors. There is no doubt that this partnership is a fundamental asset for a competitive and efficient knowledge economy.

Transparency and accessibility of patent information are therefore vital to the implementation of the EPO’s mission, which is – quote – "to support innovation, competitiveness and economic growth for the benefit of the citizens of Europe" – unquote. The publication of pending applications from the nineteenth month of the procedure onwards, and the more than sixty-two million patent documents freely accessible online, are a tangible product of this mission.

2.2.                          Patents WITH AN EYE TO licensing

 

Another sense in which patents are enabling partnerships is that they permit licensing. Licensing reinforces the efficiency of an innovative economy as it makes it possible for the inventor to safely use the resources of industrial and financial partners for the development of his or her inventions. These in turn raise the likelihood that the invention will be used to the best advantage. Licensing agreements have become the preferred instrument for the transfer of technology. They enhance the role of patents in national development strategies and thus act as a significant incentive for emerging economies to develop their patent culture.

2.3.                          The EPO PROMOTES these partnerships

 

A patent is therefore an enabling element in partnerships. The EPO plays an enabling role in the partnership process by granting high-quality patents, which support the economy through a high degree of legal certainty and predictability. Highly skilled examiners, selected by means of a sophisticated recruitment system and benefiting from continual lifelong training, follow carefully designed and constantly monitored procedures. User satisfaction surveys and the resulting adaptation of those procedures are part of an overall quality system. The transparency of the grant process and the legal remedies allowing EPO decisions to be challenged are further and important basic guarantees for the quality of the patents granted.

The efficiency of its quality system has enabled the EPO to maintain the widely recognised quality of its work, which is on a par with that of the best patent offices in the world. That is also true of the main challenges we face today. These include the spectacular increase in our workloads (nearly one hundred and fifty per cent over ten years), emerging technologies such as biotechnology or IT, an evolving legal background, and changes in the filing behaviour of applicants.

Last but not least, we also have to fulfil society’s expectations with regard to the patent system.

2.4.                          "Enabling partnerships" between patent offices

 

The concept of "enabling partnerships" also applies to the EPO’s relations with the national patent offices of the member states. The European Patent Convention, which led to the establishment of the European Patent Organisation and the Office, is an "enabling link" for the partnership between the states, their patent offices and the EPO. Contracting states to the EPC transferred to the EPO the right to grant patents for their territory. They recognise and enforce these patents at national level. To quote the preamble to the EPC, the aim of that partnership is "to strengthen co-operation between the States of Europe in respect of the protection of inventions" and to establish "a single procedure for the grant of patents" and "standard rules governing patents so granted".

This clearly expresses the underlying enabling-partnership concept.

2.5.                          Plans to reinforce co-operation within the European Patent System

 

While the EPO is the patent granting authority for Europe, granted patents fall within the national domain. Furthermore, most applications are still filed first with national patent offices. Therefore, the quality of European patents and the legal certainty they provide are the responsibility not only of the EPO. In order to ensure and further consolidate quality, predictability and legal certainty, progress needs to be made in co-ordination and co-operation between the national offices and the EPO.

In the light of this challenge, the Administrative Council of the European Patent Organisation decided last summer to lay the foundations of a common strategy. Five areas of co-operation have been pinpointed: the use by the EPO of unpublished search results from national patent offices, the definition of common norms and processes to guarantee quality, the reinforcement of co-operation and resource sharing, managing the future workload, and the restructuring of user support operations.

3.                                Recent developments IN the European Patent system

 

Ladies and Gentlemen,

Since our last conference on online services in Athens in 2005, patents have returned to the top of the political agenda in Europe. I would like now to review with you some of the recent developments in the European patent system, in particular those relating to the legal and political situation in the European Union and the current efforts of the European Commission and the European Parliament.

Following the rejection by the European Parliament of the draft directive on computer-implemented inventions in July 2005, Commissioner McCreevy has endeavoured to put the focus back on the European patent system, enabling us to move forward on stalled but vital issues such as the London Agreement and the European Patent Litigation Agreement. On the one hand, he has been pressing for the adoption of these two necessary improvements to the existing system. On the other, he has announced a re-launch of negotiations on the Community patent by the end of this year.

The EPO can only welcome these efforts and this debate.

3.1.                          [London Agreement

 

As you know, the relatively high cost of European patents compared with their Japanese and American counterparts can be considered detrimental to the continuing success of the European patent system and to the innovation process in general. However, the premium paid on a European patent is to a large extent justified by its quality and the high presumption of validity. During the public hearing on patent policy organised by the European Commission on 12 July, European industry reaffirmed its commitment to the high level of certainty conferred by European patents, and made it very clear that any reduction in costs should not come at the expense of patent quality.

The London Agreement is an appropriate response to that challenge. Countries accepting this Agreement will do without a translation of the entire patent specification in their own language, although the claims will continue to be available in the EPO’s three official languages. As this Agreement will significantly reduce the amount of translations needed for a patent to be valid in the member states, it will lead to a considerable reduction in costs. But this will not come about at the expense of patent quality. Full translations of patents are, in any case, only required at the end of the procedure. The revised language regime will therefore not affect the quality of the information conveyed by the patent during the entire granting process.

Ten member states have already ratified the Agreement, but ratification by France is the last condition to its entry into force. Last week, the French Conseil Constitutionnel deemed the Agreement not contrary to the French Constitution, thus rejecting one of the main arguments of French opponents to the Agreement. I hope that this Agreement, which supports the three-language regime enshrined in the European Patent Convention, can now enter into force as soon as possible.

I fully acknowledge, however, that not all EPO member states share the same view on the translation issue and they will therefore not all participate in the Agreement.]

[- that whole chapter depending on the actual outcome of the Conseil Constitutionnel -]

3.2.                          EPLA

 

I mentioned earlier that the quality of European patents is not exclusively the responsibility of the EPO. While the European Patent Convention provides for harmonisation of the grant procedure, the issue of post-grant litigation remains an obstacle to the legal certainty of European patents, as there is no standardised practice among the member states. Nor is there a common European authority responsible for litigation and validity issues. This is why, apart from the London Agreement, another outcome of the Intergovernmental Conference in 1999 was the draft European Patent Litigation Agreement, under which a European judiciary would be created.

3.2.1.                    Aim of EPLA

 

The aim of the EPLA is to harmonise patent litigation, thus bringing about legal certainty and predictability for innovators. At the moment, divergent legal practices in the member states are leading to inconsistent case law on some issues, and an attitude of "forum shopping" among litigants trying to maximise their chances of success in a litigation case by choosing the country whose case law they deem most favourable. This also has an adverse effect on the value of granted patents and, therefore, on innovation in general. Contrary to what is sometimes claimed, however, the national courts do not contradict the case law of the EPO Boards of Appeal more often than they confirm it.

3.2.2.                    EPLA is NOT about software patents

 

Unfortunately, the debate on the EPLA has been diverted lately to a debate on the patentability of computer-implemented inventions, as some argue that the EPLA is a disguised way of imposing software patents, which are arguably prohibited by the European Patent Convention and were again rejected by the European Parliament in July 2005.

I believe this view is biased. The proportion of computer-implemented inventions is obviously growing, as innovation tends to rely more and more on the information technology incorporated in a growing number of devices, from cars to washing machines to cell phones.

However, let me make it quite clear that the EPO does not have its own agenda on software patents. In accordance with the EPC, the EPO does not grant patents for computer programs as such, but it does grant patents for computer-related inventions that are novel, inventive and of a technical character.

3.2.3.                    Parallels with the US are misleading

 

In this connection, I would like to emphasise that parallels drawn with other systems, in particular the United States patent system, are misleading, precisely because of the high quality requirements of the European patent system. Unlike some predictions, there is no legal obstruction to innovation based on CII patents. The non-obviousness criterion, as well as the novelty and the technical character requirements, are strictly applied by the EPO.

This was demonstrated once again last Friday, when an EPO Technical Board of Appeal upheld the refusal of a patent application for a computer program that has been patented in the United States.

Here again, the thoroughness of the EPO’s grant, opposition and appeal processes guarantees the quality of its patents. The EPO is, of course, not infallible, but its procedures ensure that it makes as few mistakes as possible and that they are corrected as quickly as possible.

The EPO is monitoring with interest all the developments in this area and is ready at all times to provide policy-makers and legislators with the necessary information on technology and patents. The vote on the future of the patent system, expected next week in the European Parliament, as well as the initiatives of Commissioner McCreevy to revive moves to improve the existing system and create the Community patent, will of course command our full attention. We can only welcome the new impetus that has been instilled into the political debate, since this will lend additional force to any decisions that result from that debate.

4.                                Conclusion

 

Ladies and Gentlemen,

With its patent system, Europe possesses a powerful asset in the knowledge economy. There is, however, still potential to strengthen the system and the way it is used. I therefore urge all IP professionals, leaders of industry, policy makers and legislators to make the most of this opportunity and thereby contribute to improving the system.

I welcome the importance that the Portuguese government and the INPI have place on the promotion of patents, and I thank them again warmly for hosting this event.

I wish this conference every success.