London Agreement Seen Easing EU Patent Filing

By David Cronin for Intellectual Property Watch
Obtaining a Europe-wide patent should become easier next year when an accord reducing the translation requirements for protecting an innovation comes into effect.

Under the London Agreement, countries that recognise English, French or German as one of their official languages will no longer stipulate that a full description of a patent be translated into their most commonly-used language. English, French and German are also the three official languages of the European Patent Office in Munich. The change was aimed at reducing the administrative and financial burden on patent filers but has raised concerns.

Signed in 2000, the agreement is due to be implemented when eight states, including Britain, France and Germany, have ratified it.

France’s ratification has until now been missing. Yet on 9 October, the French Senate decided to approve the agreement, paving the way for its entry into force in the first half of 2008.

The approval was preceded by a vigorous debate on intellectual property issues in the French National Assembly. Opposition parties voiced fears that there will be a deluge of patents and that large firms will seek protection for particular formulas or processes they use during manufacturing, rather than for end products. According to some politicians, this could have adverse consequences for small enterprises by preventing them from using information that is under patent.

“The challenge for France is to avoid patents turning into supermarket products,” said Alain Claeys, a Socialist member of the National Assembly. “A patent serves to protect an innovative technique, precisely described. The danger today is the trend of more and more patenting – in domains such as software – of knowledge, not innovation. If this trend continues, it will allow unfair long-term patents that will penalise our laboratories and small-to-medium businesses.”

But Jean-Pierre Jouyet, the secretary of state for European affairs, argued that the agreement “is not in any way unfavourable to small and medium-sized enterprises.”

About 90 percent of French companies, he claimed, register patents with the National Institute for Industrial Property and 50 percent of them request that the patent should be applicable throughout Europe. Once the agreement takes effect, these firms could continue registering nationally but would also benefit from reduced costs in asserting the patents in other European countries.

“In ratifying this accord, we are using Europe to adapt ourselves better to globalisation,” he said, arguing that the agreement was positive for the French language.

“Our refusal [to ratify] would drive the 13 other state parties to negotiate between themselves a regime which privileges English,” he added. “Making easier the registration of patents is our aim. The innovations of our firms must be known abroad.”

Supporters of the agreement consider it a vital ingredient in efforts to reform the European patent system that was established in the 1970s.

This system has necessitated that patent applications granted by the EPO are translated into 22 different languages.

Such onerous requirements have been cited as a reason why researchers in Europe are more reluctant to file patents than their counterparts in the US.

Proton Europe, a network of academics specialised in technology, estimates that between 30 percent and 50 percent of all inventions in this continent originated in universities. Yet universities account for less than 3 percent of all patents filed at the EPO.

A survey conducted by Proton Europe found that there more than 10,000 priority patent applications made by American universities in 2005. The corresponding figure for European universities was 2,000.

This was despite how the 2.8 billion euros provided by industry to university research in Europe was more than half a billion euros greater than the support provided in the United States.

“We have a very different patent system here in Europe than in the US,” said Gilles Capart, chairman of a working group on patent policy with Proton Europe. “It is about time that we tackled that problem. We cannot afford not to do so as we know it is creating a deficit in the knowledge economy for Europe, compared to the US.”

Capart acknowledges that applying patents – inherently a private sector concept – to discoveries made by students runs counter to the pervading philosophy on which third-level education in Europe was founded. Ever since Friedrich von Humboldt set up the University of Berlin in 1810, academic freedom has been one of the core beliefs professed by the continent’s educators.

“Patenting is viewed as a misappropriation of a public good,” said Capart. “But one of the missions of universities is to share knowledge. If you publish something, you do so. A patent is a publication but a publication that protects investment.”

Trinity College Dublin decided in 2003 that accepting money from industry to carry out research would be conditional on patents being filed for any inventions that ensue.

“There has been no evidence that any damage has been done to our intellectual ethos,” said Eoin O’Neill, director of entrepreneurship with the Irish university.

The employers lobby group BusinessEurope has welcomed France’s acceptance of the London Agreement. It says that translation costs account for an average of 30-40 percent of the total cost of filing a European patent. The agreement should result in those costs being cut in half.

“A cost-effective market system is needed,” said Ernest-Antoine Seillière, the organisation’s president. “The London Agreement will reduce the cost of patents in Europe. This development should also give a positive impulse for further necessary improvements to the European patent system.”

But campaigners against efforts to apply stringent intellectual property rules to computer software believe the implementation of the agreement will be a retrograde step.

Benjamin Henrion of the Foundation for a Free Information Infrastructure predicted that it will be easier for Chinese firms to file patents in Europe, provide they file them in English.

“Thirty percent of patents applied for by Chinese industry are for software,” he said. “If you lower the barrier for patents, there will be a growth of them. I would be very surprised if the opposite is the case.”

David Cronin may be reached at info@ip-watch.ch.