WIPO, EPO Leaders At OECD: Adjust The Patent System For The Globalised, Knowledge-Based Society

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The international intellectual property rights system must urgently make headway toward an easier-to-use, globally agreed upon, inclusive and effective architecture, a high-level panel of IP policy leaders said on 29 November.

The panel on “Knowledge Assets and Economic Growth: The Role of Policy” was held at a Paris-based Organization for Economic Cooperation and Development (OECD) conference on patent statistics. World Intellectual Property Organization Director General Francis Gurry urged that policymakers to “identify the common interest that legitimises a multilateral response.” With regard to the patent system there is a need to develop the political will to tackle the basic conditions of patentability, he said.

The recent passage of the WIPO Beijing Treaty on Audiovisual Performances and the progress toward an exemption for the visually impaired shows that “it is not impossible to identify the common interest,” Gurry said. “But we have not done that in the area of innovation, technology and patents so far.” He reiterated his concern that there is a “multilateral malaise” and a great diversion into bilateral and plurilateral negotiations at the expense of the multilateral system.

Yet countries have to engage in discussions about how to adapt the 1970s-style patent system to the globalised knowledge-based economy. The developed countries should, for example, to come to grips about what constitutes novelty.

“There is no excuse for it not happening now,” Gurry said, referring to the steps to reform of the Patent Cooperation Treaty (PCT), which WIPO oversees. Among the dangers of not providing adequate answers are patent wars and technology protectionism.

OECD Deputy Secretary General Richard Boucher, moderating the discussion, pointed to patent “trolls” and patent thickets. “Some are dismayed,” he said, and “I want to make sure that scientists and engineers make more money than lawyers.”

European Patent Office President Benoît Battistelli underlined patent quality as the foremost task.

“We do have two million patent applications, but do we really have two million inventions which will change the technological knowledge every year?,” Battistelli asked. “I don’t think so.”

Patent offices should restrict patents – which gave monopolies for some time, only “to inventions that deserve it,” he said.

The EPO president said he agreed fully with Gurry that improvement of the WIPO-led Patent Cooperation Treaty is paramount, and some steps have been taken. He also agreed that with regard to the main differences between the US and the European systems (where there is a different concept of novelty) progress can be seen in the recent US patent law changes. “We have to continue in that direction,” said Batistelli.

The EPO also will foster its work in making patent information more accessible by partnering with the ArabPAT and LatPat document systems. In addition, EPO will start to provide a Chinese-English translation for free, supported by Google technology. With a large part (20 percent) of the state of the art being Chinese, it would become very difficult for engineers, especially in small and medium-sized companies, to decide if they should carry on with a development if translated documents are not available. The machine translation provided is a first step to helping developers to identify relevant texts.

Starting PCT reform was also said to be a matter of urgency by Jorge Avila, president of the Brazilian Instituto Nacional de Propriedade Industrial (INPI). Avila acknowledged that “patents from everywhere go everywhere and we still [do not have] a PCT that can help us to solve the problem.” Avila pointed out a single measure that would help national patent offices in the short term. The offices, he said, should be eligible to ask for an examination report, as currently the receiving offices cannot ask for such a report, only the applicant can.

INPI, he assured, would tackle the backlog issue, stemming from continued growth and risen complexity of applied-for technology, by adding staff. Newly passed legislation will soon allow an increase in patent examiners to 750 persons, up from 250 today. Formalising language for applications also will make patent examinations easier, he said.

Avila in his presentation vividly described the major shift in the perception of the IPR system in Brazil after the 1980s. “Old perceptions of IPR protection” were “very negative,” he said. IPR protection was seen as detrimental due to costs it put on technology transfer or re-engineering. “Global governance” for the knowledge-based environment is a goal of harmonisation efforts.

Gurry said that developing countries, while having disadvantages in the effort to patent technology, might enter the knowledge market right away with the protection of plant varieties or their cultural goods. To allow for monetising of cultural goods effectively, a functional global digital market place is necessary, however, “and we do not have that.” More issues to be tackled with regard to IPR reform, Gurry said, are to consider the public interest in trade secrets and the reconsider human resource management.

Monika Ermert may be reached at info@ip-watch.ch.

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