An interview with Benoît Battistelli, European Patent Organisation

Europe encompasses approximately 10 million square kilometres. Cultural diversity is a certainty. The continent requires treaties and agreements to bridge the borders protecting national interests for the benefit of a wider aim.

The European Patent Convention, which was signed in 1973, provides for patent protection in the 37 European countries that are signatory to it. The European Patent Organisation was established four years later with a brief to establish a system of law common to these states for the granting of patents for inventions.

The European Patent Office (EPO), as the executive arm of the organisation, must implement the provisions of the convention to overcome the competing national interests of the member states that make up the Administrative Council, the EPO’s governing body.

Since July, it has been Benoît Battistelli’s task as the new president of the EPO to lead the office. His IP credentials are proven. He was the chairman of the Administrative Council and the director general of the French National Institute of Industrial Property before he took up the new role.

Battistelli says: “I also have lots of experience in diplomatic fields. I have worked and lived in four different member states of the organisation: Poland, Italy, Turkey and France.”

The Administrative Council is made of up delegations from each of the member states of the organisation. Each delegation has one vote to represent the interests of the member state in council decisions on EPO actions. One such action was the March presidential elections. Battistelli eventually won after three deferrals.

“The president is elected by a three-quarter majority and it is very difficult to reach a threequarter majority in any national or international organisation. It was in due time, considering it was made four months before the end of my predecessor’s mandate. In terms of governance, I think things have been done correctly," he says.

“I don’t think it took too much time, because each country has one vote in a secret ballot that needs to produce a three-quarter majority. It’s very difficult to apply this rule. It does give the new president a feeling of support because of the very large majority. Twenty-seven countries out of 36 member states [Albania joined after the election] voted for me. This is a very large, supporting majority, which is very important.”

Serbia will become the 38th country to accede to the European Patent Convention and join the organisation in October. Finding its voice in an organisation already boasting nations with strong intellectual property focuses might prove difficult.

“Some member states are more influential than others because they are more active in IP,” says Battistelli. “It also depends on the head of each delegation.”

The EPO enforces a democratic solution in such situations. Positive alliances within the council can also be forged that help particular groups to achieve shared aims. Battistelli says:

“We take a lot of care to be sure that each delegation is heard and listened to, and that each one can be comfortable in this organisation. Geographical and cultural concepts are sometimes shared. Delegations join forces so that they can express their voices more efficiently—like the Scandinavian group for instance. This is a reflection of European reality, so I think it’s quite positive.”

Maintaining and improving co-operation between national patent offices and the EPO is necessary to ensure a better service for users of the patent system. The European Patent Network was established in 2007 to encourage the EPO and member offices to share knowledge and skills. “I think it is important to develop this network,” he says. “Europe needs two tiers of patent activity.”

He adds: “Putting more substance in the network to help relations with national offices will certainly be one of my first priorities. I will develop technical co-operation by proposing that we share the same information technology tools and training methods for patent examiners.”

Strengthening the European Patent Organisation’s two-tier patent system will be beneficial to the office’s customers and national economies. The European Union patent under consideration at the moment would offer companies the opportunity to seek protection for technology in the form of a single, enforceable patent, instead of or as well as the European patent, which is a bundle of national patents.

“I am in favour of this new patent,” says Battistelli. “It will give a better choice to companies that would be able to use either the European patent or the new EU patent.”

"For the moment, we are standing on one leg. It’s not a very comfortable position and it can’t last too long."

There are issues in need of a resolution. Translation costs currently make the European patent more expensive than its US counterpart. The commission proposes that EU patents will be examined and published in one the EPO’s three official languages—English, German and French—and the published document will include translations of the claims in the other two languages.

“The EPO can help to find a solution, especially with the automatic translation systems that we are going to develop. This may bring a solution to one of the most sensitive questions— the languages question. We have to find a balance between this question and making the EU patent affordable to most companies, especially SMEs, so that it can be useful to most economies," Battistelli says.

Battistelli is also in favour of a centralised European litigation system for patents. “The European patent system is working quite well with this centralised granting authority,” he says. “But we don’t have a centralised litigation system, so a patent is granted in a uniform way and then it has to be defended in each member state.

“This costs a lot of money and time, and sometimes there are contradictions in the national judge’s decisions. We have a centralised granting authority, and we need a centralised litigation system. For the moment, we are standing on one leg. It’s not a very comfortable position and it can’t last too long. We are waiting for the European Court of Justice to give its opinion on the subject. I am quite optimistic and hope that it would be possible to take decisions on this matter in the coming months.”

In the face of the expanding membership of the organisation, the EPO needs to be armed with the necessary tools to do its job correctly. 7000 EPO employees across five offices can be a formidable workforce if they are managed correctly. Battistelli hopes to “recreate” a trusting relationship between the Administrative Council, the EPO’s management and the staff.

Building the staff’s confidence in its leadership can have a positive effect on the organisation as a whole. Battistelli says: “The fact is that there was marginal progress in this field before I came to office, so I decided to address the staff as soon as I was elected. I had the opportunity to directly address about 3,000 people from the EPO offices and I met the central staff representation for a very good discussion. By these first actions, I wanted to make people understand that I would like to have a direct, informal and efficient relationship between the management and the staff.”

The Staff Union of the EPO (SUEPO) is keen on establishing a good relationship with Battistelli for both the benefit of the office’s staff and its customers:

“[He] has a solid background in public administration, which SUEPO expects will help bring the EPO back to its original role of serving the European public. SUEPO further hopes that Battistelli will allow for the much-needed improvement in relations between the EPO administration on the one hand, and the EPO staff and their representatives on the other.”

The service provided by the EPO is judged on the quality of the patents it grants. Regular users of the patent system can look forward to quality patents continuing to be granted by the EPO. “The office has a very good record,” says Battistelli. “We are largely considered by IP professionals as one of the best offices for the quality of our patents.”

This does not mean that the EPO will be taking it easy. The office is implementing plans to improve. “I think quality is an everyday battle. We have acted to not only maintain but improve our patent quality. We also have our internal quality management system in order to ensure that our services have a good quality. We have also launched an information technology audit because we want to be able to use the best tools possible.”

While the quality of its patents will be improved for the benefit of its customers, the EPO’s research arm is being directed towards climate change to analyse the effect intellectual property has on ‘clean technology’. How patents affect the innovation of clean technologies is unclear. The EPO wants to establish a link.

"Clean technologies are very controversial technologies, because under the current classification, it is very difficult to recognise and see them."

Battistelli says: “I think there’s a lack of objective and factual information, so the EPO and its partners have launched a study to find out the importance of patenting clean technology and the effects of doing so. This study is about to be completed and is to be presented sometime in October. It is the first comprehensive study on the relationship between patents and clean technology.”

Identifying clean technology is also a problem for the EPO’s customers. National offices, such as the UK Intellectual Property Office, have set up databases displaying clean technology patents, yet what exactly constitutes clean technology remains open. Battistelli has seen the reclassification of clean technology patents at the EPO as the office attempts to give its customers a better understanding.

He says: “The reclassification of clean technology patents will help people to understand the economic weight of these patents. Clean technologies are very controversial technologies, because under the current classification, it is very difficult to recognise and see them. The new classification will make it easier for people to identify clean technology.”

The European Patent Organisation is expanding. When Serbia officially joins, 38 members will have a say in how Battistelli’s office is run. He must listen to their opinions, while providing an effective and efficient service for the EPO’s customers. Pleasing so many stakeholders at the same time will be no easy task—compromises may have to be found. Yet Battistelli seems like a man capable of holding the weight of European patents on his shoulders. Whether or not he will is a different matter.