1 December 2012Copyright

All to play for: CIPA congress

In what way is intellectual property law like soccer? That provided an overarching theme for the 2012 Chartered Institute of Patent Attorneys (CIPA) Congress, which took place at the Lancaster London Hotel on October 11 and 12. Some speakers took the theme literally (courts are referees, patentees are defenders, the goal is a victory in court or at a patent office, etc), but most elected to use it more as a guide to the tenor of their talks.

To belabour the analogy just slightly, the conference kicked off with a keynote speech from Wim Van der Eijk, vice president of appeals in directorate general 3 of the European Patent Office (EPO). He addressed the topic of harmonisation and the proposed unitary patent, of which he said that it’s “closer to a result than for a very long time”.

While the ultimate outcome of that process remains to be seen, there has been a continual increase in applications for the existing European Patent administered by the EPO in recent years, and so far, 2012 looks to be following that pattern, with a rise of 5.5 percent in applications during 2011.

However, he said, while harmonisation is certainly on the agenda, there is some evidence that there remains disharmony in important areas of the system. Van der Eijk pointed to specific technical areas in which EPO examiners are refusing many applications—for example, for business methods—and he highlighted that many of these applications originate abroad.

The EPO is working hard to keep up with its increasing workload, and two new boards will probably be created in the next two years, including one in 2013 that is likely to deal specifically with computer-implemented inventions and business methods. Meanwhile, he said, efforts continue to educate the judiciary in national courts through cooperation programmes and information exchange.

The keynote speech was followed by a panel discussion, in which Mark Roberts of Davies Collison Cave, and Eric Raciti of Finnegan, Henderson, Farabow, Garrett & Dunner, joined Mills and Reeve’s Alasdair Poore in discussing the question of obviousness in their various jurisdictions.

Raciti in particular made some enlightening comments about ‘phosita’ (the ‘person having ordinary skill in the art’). Who is phosita, he asked, and does the phosita change depending on what you are looking at? Perhaps worryingly, he concluded, the phosita may be a different concept depending on whether the enquiry is into novelty, obviousness or enablement.

Other sessions on day one covered patent infringement issues, IP and competition law, and an interesting panel discussion of the difficulties facing patent attorneys and patent owners who want to apply for patents in other languages.

Taka Koshibu from TMI Associates in Japan, and Toby Mak from Tee & Howe in China, both underlined the potential pitfalls people can face when filing in those jurisdictions, including demonstrating how easy it is for a mistranslation to result in a plural becoming singular—bad news for certain types of applications!

At the congress dinner, Lord Justice Kitchen gave an excellent speech on the proposed unitary patent, exposing some of the key issues that need to be resolved before it can proceed and explaining why some of its current flaws would make it bad news, especially for small businesses.

Day two of the congress continued on the subject, with a passionate debate between Willem Hoyng of Hoyng Monegier, David Rosenberg of GSK, David Sant of Taylor Wessing and Eugen Popp of Meissner Bolte and Partners. Issues raised included the quality and expertise of judges for the proposed unitary patent court, whether ‘competition’ between diff erent divisions will lead to an unduly patenteefriendly system, and the thorny issue of cost.

A look at the impact of the IP Translator case (discussed on page 24 of this issue) and discussion of various hot topics in the industry closed the conference. As the party that brought the IP Translator case, CIPA is rightly proud of its “lawsettling” nature, as IP consultant Richard Ashmead put it.

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