13 March 2013Patents

EPO wants dual approach to boost patent quality

A dual strategy is needed to boost the quality of European patents, according to advisors at the European Patent Office (EPO).

The Economic and Scientific Advisory Board (ESAB) published recommendations today to counter “widespread” concerns that deteriorating patent quality is hampering the European patent system.

To improve patent quality, the EPO must implement changes both before and after patents are granted, the group said. At the pre-grant stage, the ESAB said the speed and quality of examination needs addressing, while patent offices should share information during the search and examination process.

Additionally, the board said the EPO should create incentives for patent owners to more clearly classify prior art and make inventions more identifiable. “For instance, centralised repositories of non-patent prior art, and information technology infrastructure allowing full-text searching of non-patent literature, could be envisaged,” it said.

Once a patent has been granted, the ESAB said opposition and re-examination proceedings must be improved to aid patent quality. The advisors also want to work towards a more efficient and less expensive litigation system, and find reliable alternative dispute resolution mechanisms.

But lawyers say the proposals are based on flawed logic and are too vague.

“There are no widespread concerns at all. That’s the fundamental problem I have with the recommendations – is there actually any evidence that patent quality is falling or are people just getting better at attacking patents in court?,” said Adrian Tombling, partner at Withers & Rogers LLP in London.

“Quality is a very difficult thing to measure and the EPO needs to explain that – it’s difficult to know what it is really recommending. For example, we all want to make litigation cheaper, but it is very difficult to do that.”

Avi Freeman, partner at law firm Beck Greener, added: “I haven’t really heard people complaining a lot about bad patents – I don’t get that sense.”

He said the proposals don’t contain any specific recommendations and that the board could have come up with some more concrete suggestions, especially as some of board’s members, such as Sir Robin Jacob, are well-known in the IP community.

Jacob, professor at University College London, recently hit the headlines for consulting tech firm Samsung after delivering a ruling in the company’s favour in a dispute with Apple.

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