IP Summit: The Unitary Patent and the EPO
More than 250,000 patents were filed at the European Patent Office (EPO) last year, according to office president Benoît Battistelli, in what was a record year for applications, and the 2013 figures represent a 2.8 percent growth jump on the 2012 filings. Around 93,600 filings came from the EPO’s 38 member states, while the US (64,800), Japan (52,300), China (22,000) and South Korea (16,900 filings) led the way from outside the EU. China contributed 18 percent more to the total applications than last year, while South Korea’s share increased by more than 16 percent.
Just two years ago, Battistelli explained, Chinese applicants were about as prolific as those from France, but today China is responsible for 14 percent more patent applications than the EU country.
To ensure the EPO keeps up with the surge in filings, often related to complex inventions with prior art developments in different languages, work needs to be done, Battistelli said.
“We can do a lot to improve the patent system.”
Describing the EPO as a “gateway to the European market”, Battistelli said bringing down language barriers is crucial. To that end, he said, the Patent Translate product, which will provide patent information in the 28 languages spoken in the EU, as well as Chinese, Korean, Japanese and Russian, is getting closer to “becoming a reality” on that scale.
Wider adoption of the Cooperative Patent Classification (CPC) will also be a factor, he said, noting that in December 2013 Brazil officially signed up to the CPC, joining China, South Korea and Russia.
One of the EPO’s main focuses in the next two years (and beyond) will be the Unitary Patent, applications for which the office will be handling. Days after speaking at the IP Summit, Battistelli praised the “steady” progress that the Unitary Patent and its associated court made in 2013. In a blog post, Battistelli said the outlook for ratifying the Unified Patent Court (UPC) was positive, meaning that the first patent could be issued in 2015.
“This will also ensure that time remains available in the coming year to fine-tune the preparatory work for a system which will be sound and will deliver the highest quality,” Battistelli claimed.
The European parliament and council approved the regulations governing the Unitary Patent deal in December 2012, while EU ministers signed an agreement in February 2013 that establishes the UPC.
Inevitably, the Unitary Patent was a focus at the IP Summit, where, speaking via a video link, World Intellectual Property Organization director general Francis Gurry described the project as a “welcome instrument” for dealing with the “massive demand” for quality IP rights.
After Gurry's address, a series of panels discussed the potential challenges the Unitary Patent and UPC will introduce to IP enforcement.
Alexander Ramsay, vice-chair of the preparatory committee, the group responsible for setting up the UPC, confirmed that a target date for launch had been set for early 2015.
He added though: “We will not let the target date compromise the quality of the new system.”
Ramsay countered any concern that the system will make enforcing IP rights in Europe more complex, by saying that “we’re adding a non-complex layer to an already complex European patent system”.
However, the potential additional cost of maintaining patents across Europe is a worry for US companies, said Al Tramposch, deputy executive director at the American Intellectual Property Law Association. Under the Unitary Patent system it wouldn’t be possible to abandon patents in certain countries, he said. Most US-based companies have strict budgets for IP protection, he added, but those budgets largely cover IP rights in the US.
Marina Cousté, a partner at law firm Reed Smith in Paris, said the UPC’s 50 technically and legally qualified judges may have an impact on forum shopping. But David Cohen, head of litigation and licensing at Vringo, said that as long as there are qualified judges, there will be forum shopping, which is not necessarily a bad thing. Olivier Thirard, deputy legal director at Orange, said forum shopping is “unavoidable”.
A discussion of the Unitary Patent and UPC’s impact on high technology considered the potential threat of “patent trolls”. One of the main concerns expressed is that a continent-wide patent system will foster a troll-friendly environment.
Tina Chappel, director of IP policy at Intel Corporation, said that trolls are not yet targeting Europe, as a preliminary injunction is not yet the “powerful remedy it is in the US”.
Intel has faced more than 12,000 “troll” litigations in the last 10 years, she said, which has had a “substantial” impact on the company’s systems.
Chappel observed that many practising companies are starting to engage in troll-like behaviour and, as they forum shop, she advises empowering the UPC to transfer cases to other courts.
Trolls are not a problem because they’re winning —just 8 percent of “trolls” will win a case if it goes to trial—but they’re a problem because they’re imposing costs and forcing SMEs to settle, she said.
