Conference Identifies Patent Challenges For Next Decade

By Tove Iren S. Gerhardsen
NEW YORK – When this week’s Fordham University conference on intellectual property was discussing future trends in the areas of patents, trademarks and copyright, patents seemed to be the winner in terms of number of issues to be worked out over the next decade. The buzzword seems to be all about “quality” but also perception of the system.

On a global basis, these include an improvement of the quality of patents granted. In Europe, it involves a new proposal for the development of a harmonised patent litigation system as well as politicians’ and the public’s perception of the patent system, speakers said. It was also suggested that improvements must be made in the area of patents and pharmaceuticals.

The 12-13 April meeting is hosted by the Fordham University School of Law, and typically draws a high-level international audience, mainly from developed countries.

Looking 10 years ahead, Lord Hoffman, Law Lord of the House of Lords in the United Kingdom Parliament, said there probably would not be a great deal of movement on substantive patent law by 2017, despite pressure from the pharmaceutical industry to extend the patent protection period. But he predicted that changes would occur in the area of patent examination such as greater cooperation between the offices.

As for Europe, he said it was agreed that something had to be done in the area of jurisdiction, but he did not see how the European Commission would gather enough support for its recent communication in which it proposes to harmonise national patent litigation law in Europe with a central appeals court (IPW, European Patent Policy, 4 April 2007).

He preferred a “coalition of the willing” in which those countries that want it just “do it.” Hoffman said that 90 percent of patent litigation cases in Europe take place in the UK, Germany, the Netherlands and France. “The best is the enemy of good,” he said.

Erik Nooteboom, head of the intellectual property unit at the European Commission Internal Market Directorate General, said that the communication was meant to launch a debate, and said probably this would be discussed for the next 10 years. But he said bigger problems – and very important issue – were the perceptions of European politicians and the public about the patent system in general, and the backload of patent applications that could have implications for innovators.

On the EU problems and the European Court of Justice (ECJ) in particular, Sir Hugh Laddie of Rouse & Co. International and University College of London said that while “the best” were appointed in the United States, the ECJ judges were often “not good enough for the job.” Lord Justice Jacob from the Court of Appeal, Royal Courts of Justice in London, said that the trademark law in Europe was more uncertain now after some 70 ECJ cases than when it had started, and he was therefore “utterly opposed” to the ECJ getting involved in patent law, which he believed businesses would oppose.

Judge Pauline Newman of the US Court of Appeals, Federal Circuit, said she was worried about the “popular noise about the broken patent system,” and said it was not the quality of examiners that was being criticised but rather the kinds of patents that were granted.

Ron Marchant, immediate former head of the United Kingdom Patent Office, said that low-quality patents do exist but the problem is not as strong as people think, as international cooperation schemes such as between the US, Europe and Japan were “working roughly in the right direction.”

Charles Eloshway, attorney advisor in the office of international relations at the US Patent and Trademark Office, said that it had an “acute problem” of staffing, saying that rapid increases in the number of new staff put pressure on proper training and quality reviews.

Lord Justice Jacob acknowledged that “duffy patents are out there,” but believed the courts would respond. He said the old German system of patent offices granting quality patents and courts only dealing with enforcement no longer work.

The problem of quantity versus quality of patents may also have implications for a country in terms of protection from outside forces, as was indicated by Canadian Judge Roger Hughes of the Federal Court of Canada, who noted that 95 percent of patents issued there are for foreign parties.

As for what would be on the agenda of a similar IP conference in 2017, Judge Randall Rader of the US Court of Appeals, Federal Circuit, said there would be a panel with trade judges, it would involve Chinese and Indian officials who he said now need institutions to beat the others in the area of intellectual property, and the US Food and Drug Administration (FDA) would be invited as he predicts there will have to be a rewriting and re-examination of the interface between drugs and policy, with a rewriting of the Hatch-Waxman Act, which was designed to promote generics, according to sources.

When asked by Conference Director Hugh Hansen where they believed the patent system would be during the next 10 years, six of the panellists believed it would improve, three said it would stagnate or remain the same, and one said it would “get worse.”

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.