Top IP Official Cites Swiss Patent Litigation System, Global Over-Patenting

By Catherine Saez
The addition of new actors including developing countries and a trend of over-patenting in some developed countries is leading to an overload of the global patent system, according to Roland Grossenbacher, director of the Swiss Federal Institute for Intellectual Property. In addition, a patent litigation system is needed in the Europe Union but is stalled, while Switzerland may make such a move in the near future, he said at a recent seminar held by the France-Switzerland Chamber of Commerce in Geneva.

At the 19 April event, Grossenbacher, who also is chairman of the Administrative Council of the Munich-based European Patent Organisation (EPO), gave a presentation on the influence of intellectual property on trade policy. He said that the overload of the new system and the increase in developing countries as users of the patent system is good news and will lead, in time, to the reduction of piracy and counterfeiting of goods.

He also said that stricter access to patentability should be instituted, putting an emphasis on quality over quantity, he said. Four factors should be absolute prerequisites for obtaining and granting a patent: Innovation, inventive activity (if outside the realm of the specialist), strict limitations on patentability (avoiding fields for which patents are not applicable, such as software), and a significant decrease in the delays in granting patents.

Grossenbacher advocated for stricter systems for granting patents and a strengthening of patent protection, though he warned against extremes in protection. Too much or too little protection can harm innovation, he said.

He called for a European litigation system, which for the moment appears to be stalled, although the Commission has issued a new communication proposing a lighter version of an earlier litigation system (IPW, European Policy, 4 April 2007).
Grossenbacher told the audience of mainly lawyers and intellectual property advisers that in Switzerland (not an EU member) a federal tribunal on intellectual property should be set up in the near future.

Although some 95 percent of patents are held by developed countries, Grossenbacher said that since 2002, Mexico, India and China showed a tremendous increase in patent applications. He showed that a link could be made between a level of development – for example, the number of post-graduate students in a given country – and the number of patent applications being filed.

IP as an Intangible Asset

Beyond the ever-growing economic impact of intellectual property and some basic technicalities, Grossenbacher stressed the importance of the balance between the patent holders’ rights and public rights. He presented statistics showing that countries that granted most patents were northern European countries, Switzerland, Japan and the United States. Intellectual property translates into intangible assets; many of the most successful global companies, such as Coca-Cola or Microsoft, typically show as much as 90 percent of their capital as “intellectual property and intangible assets.”

Catherine Saez may be reached at info@ip-watch.ch.