Have a little patent

Posted on 8 Feb 2011 by The Manufacturer

After 40 years of back and forth, 2011 could finally be the year when a single patent law covering a multitude of European countries is introduced. But we’re talking about Europe, after all, and not everyone’s playing ball. Mark Young reports.

By applying to the European Patent Office (EPO), companies and individuals get can get patents registered in up to 40 countries with one application. Yet the process remains highly convoluted and costly.

“There’s an awful lot of bureaucracy involved,” surmises Paul Foot, a chartered and european patent attorney and partner at UK law firm Withers and Rogers. “You’ve got this European patent which goes through the EPO as one but you end up with a bundle of individual national patents.

There are then discrepancies over how these are regarded and what constitutes a violation. Each has to be renewed each year which cots money and each is subject to its own national court. Although it’s all supposed to be harmonised, different courts can come to different decisions so where a patent is recognised in one country it might not be in another. Given that we’ve had the EU for 40 odd years, the fact that we don’t have a real European joined up patent is a bit of a drag.” There’s also the cost and time of getting patents translated into the specific language for each country it is being sought in. What’s more, patent attorneys like Foot are an obligatory constituent of the process for any company or individual from an EU member state and have to liaise with counterparts in each country to bring the patent into force. All things considered, the cost of getting a patent in all 27 EU member states is somewhere in the region of €80,000 and EU companies collectively spend an estimated £1bn per year on translation services – something branded “ridiculous” by Dr. David Hill, chief executive of the World Innovation Foundation Charity, since the majority of business is conducted in English anyway. “As soon as we accept English as the official business language of Europe, the quicker everyone, everywhere, starts to save money,” he says.

But now 12 EU member states (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia and Sweden and the UK) are claiming a breakthrough after 40 years of fruitless discussions and say a single patent covering all 12, which will be presided over by a single authority, could be in place by the end of the year. The move has been made possible because the notion of “enhanced co-operation” – introduced in the 2009 Lisbon Treaty – stipulates that a group of as a little as nine EU member states can make an agreement between them. The European Commission has put forward the plan on behalf of the group and a detailed plan will now be drawn up.

Yet all is not plain sailing. Spain and Italy, as major European economies, are conspicuous by their absence from this list. Language remains the sticking point. They reason that their mother tongues should be automatically covered by any extended patent. The other countries see the extra languages as superfluous, though. English, French and German vernacular – as the three languages ordained long ago as those which Europe can get by on in such affairs – are considered sufficient, especially since streamlining the process and costs remains the driver for the move.

If the latest round of talks does come to fruition, the cost of getting a patent in all 12 countries would be reduced at least 10 fold, according to Michel Barnier, EU internal market commissioner, who is heavily involved in attempts at pushing through the development. “European inventors can afford no further delay,” he says.

Patents don’t have to be obtained in every country, of course. Explains Foot: “If you are a car company you’re not going to make a different component for the models you sell in places like Romania or the Netherlands than the ones that go to bigger markets like Germany or France. So just obtaining the patent for the bigger places where something could conceivably be copied will suffice.” Spain and Italy, though, are less clear cut when making that analysis. It is hoped that those countries will see that the benefits are too large to ignore when the scheme is up and running and join later.

The development of a multi-national patent coalition certainly finds favour among manufacturers.

“As an engineering company that develops cutting edge technologies for industries such as defence and automotive any change that reduces both the complexity and cost of the IP application process is good news for both us and our clients,” says Chris Reeves, business development manager for collaborative projects at MIRA. “MIRA is a global business so reducing the need to replicate IP applications in individual countries is definitely something we would welcome.” Paul Titley, managing director of R5 – the formulation development business of fast growing Tyneside company Aesica Pharmaceuticals – adds: Government bodies are not always lauded for their efficiency in the UK and rarely are they accredited with cutting red tape. However, the UK Intellectual Property Office is given a good press in most quarters and there are instances where it bears the brunt of some of the bureaucracy from Europe. Paul Foot describes it as “quick and user friendly”, compared with other countries’ state patent offices. In Brazil, for instance, he filed a patent a decade ago and suspects it probably hasn’t even been looked at yet.

From the start of this year, the EPO is stipulating that applicants must submit the results of searches by national patent offices to ensure that the development is not already registered.

The IPO has decided to file the information directly, rather than individual or company having to pay a Patent Attorney to retrieve and send the information on to the EPO themselves. This means businesses will save money on the fees and the process should become quicker. So long as a patent has been filed in the UK – as it will have been in an estimate 5,000 cases of European applications that originate here – businesses won’t notice any discernible change in the process. But the situation won’t have got any worse.

The EPO isn’t quite so helpful, it appears. Foot says the decision to put the onus for supplying the results of previous searches onto the individual or company rather than carrying out the work themselves is consistent with its usual habits. “The EPO has been faced with backlogs in the past,” he says, “and the way that they have tried to deal with that is to push more of the work away from themselves onto applicants. They structure their fees to force us down certain avenues which don’t benefit applicants. Although our trade bodies lobby from time to time for changes and to minimise the negative impact, the EPO isn’t really answerable to anybody so we just have to put up with it.” “Easier access to a pan-European application can only be a good thing. Making it easier will also make it more attractive.” But he warned: “Simplifying the bureaucracy of applications going in must be matched by the capability to handle information and decisions coming out.” Barnier says the parties involved are hopeful that the single patent will come into force by the end of this year but there are still issues that need to be ironed out, such as whether there would be any overlap between the new system and the existing EPO one, and which authority would take precedence in administration. Remember, this is Europe, and riddled as its legislature is with confusions dating 40 years and counting; a little more patience may be required before the patent problem is solved.