EPO Looks To Future Technologies, 2010 Leadership Change

PRAGUE – The current revolution in science and information was the topic of this year’s European Patent Forum, which brought together examiners, lawyers, policymakers and other patent professionals to discuss how the pace of the patent system can mesh with today’s whirlwind of technological change.

Meanwhile, European Patent Office (EPO) President Alison Brimelow informed her staff that she will “not be seeking extension” when her current three-year contract is up at the end of June 2010, EPO Director for Media Relations Rainer Osterwalder told Intellectual Property Watch. Choosing a new president is the member-driven job of the administrative council of the EPO, but it is unclear when they will start such a process.

Getting Business Method Patents Not Easy

Quality over quantity was a big topic of discussion at the 28-30 April forum in Prague, as the Czech Republic currently holds the rotating European Union presidency. The European Patent Forum is an annual event hosted by the EPO, and aims to address current issues in patenting. The 2008 forum dealt with climate change.

An oft-repeated statistic at the event was the fact that some 93 percent of business method patent applications to the EPO are rejected.

EPO’s Alexander Gardiner told Intellectual Property Watch that only one-fourteenth of the EPO patent-examining staff is devoted to information and communications technologies (ICTs), but that they account for 75 percent of refusals. And within ICT refusals, 40 to 50 percent are in business method patenting.

Several participants at the forum told Intellectual Property Watch they wished there had been a stronger American presence at the event. The United States Patent and Trademark Office (USPTO) has traditionally been more willing to approve business method patents than has the EPO, and participants told Intellectual Property Watch they felt it would have been valuable to hear an explanation of why. This is especially true as recent court cases might be changing legal precedent on business method patenting in the US (IPW, IP Law, 6 November 2008).

A breakout session on business method patents mentioned a study that found while increasing a patent portfolio increases a firm’s survival chances, patents on pure business methods seem to have little impact on the firm performance, said Stephen Hey, principal director at EPO, summarising the session. However, those few which are granted are worth it economically. When people are afraid of business method patents, what they really fear is trivial patents, he said.

New Technology, New Paradigms

Most of the forum was devoted to asking questions about how the latest technologies relate to patenting.

“Twenty years ago, our lives were completely different – we had no mobile phones, home computers, flat screens, GPS systems, CDs or DVDs” said Thomas Hammer, vice-president at the EPO directorate-general operations, “and within 20 years there has been this explosion of technology.”

With that new technology, he added, has come new jargon: mpeg and jpeg, nanotechnology, biometrics, terabytes and petabytes. And with the jargon are problems of protection, such as which kind of IP rights apply, or whether to look into open source or keeping trade secrets.

Some at the forum looked ahead to future jargon, and what issues it might raise. “What happens to inventive step and [a] person skilled in the art when you could get computer-aided invention, and computer-aided patent prosecution?” wondered keynote speaker Ove Granstrand, a professor of industrial management and economics at Chalmers University of Technology in Göteborg, Sweden. “What if the patent office failed the Turing test?” The Turing test differentiates between machine processing and human intelligence, and passing it would signify the existence of artificial intelligence.

Patents over increasingly complicated computer games that might involve new channels of communication between humans and computers, augmented reality, artificial intelligence, and even user-made life forms might raise questions over the line between patenting and copyright for software, said Hey, adding that the computer games industry needs patent protection for innovative ideas in game rules and visual effects on the screen, which is currently not possible.

And can “downscaling” count as an innovative step in and of itself, asked Stefan Rolf Huebner, of patent law firm Hinkelmann & Huebner, at a session on nanotechnology. Normally, merely reducing the dimensions of a thing is not an invention, he explained. However, when you move from microscopic to nanoscopic, the physics changes and so do the properties of the material.

Extrapolating down to that kind of scale is not always possible. For example graphene, a nano-scale carbon-based material, is an excellent conductor – but its macro-scale cousin graphite is not at all. So miniaturisation in the case of nanotechnology may actually be inventive.

Claudio Germinario of the Società Italiana Breveti, said a key challenge in nanotechnology is in defining what it is. Where does a nanotube used for medical purposes fall? The category matters a great deal, because it is possible, for instance, to patent new uses of a medicament, but not of a medical device.

Even finding prior art for nanotechnology is challenging, said Christian Kallinger of the EPO. It is not always easy to tell where nanotech might fall – is it chemistry or electronics? Biology or information technology? Or some combination of both? The EPO has recently introduced a new tagging system – the tag is called YO1N – for nanotechnology patents to help deal with this issue, said Kallinger.

Speed Essential In Digital Age – Can Patents Keep Up?

The asymmetry between the patent system and digital innovators “is dramatic,” said Kenneth Cukier, former technology correspondent for The Economist said at the opening plenary of the event.

“You have an industry geared toward innovation that requires speed. And the central bank minting the certificates [patents] is slothful,” said Cukier, a pro-business writer now based in Japan. There is no reason for the existence of the patent backlog – which often delays granted patents several years from the date of filing, he argued: patent examination should begin a week after filing.

Some improvements have been made in recent years, however. The “delay from filing to final decision improved from 46.2 months to 43 months over the last 4 years,” Hammer told the closing session. “It’s not enough but it’s the right direction.”

However, “if patent offices can’t churn out legitimate patents, then the whole industry just becomes a transaction cost, a tax on the industry,” Cukier said.

Practical Matters and Increasing Understanding

Some of the talk of the forum turned towards more practical matters – workshops intended to aide examiners in electronic filing with the EPO or paying fees online, or general suggestions on how to improve the patent system, in particular in its communication with scientists and policy makers who need to use it but do not always know how.

Gillian McFadzean, director of Technology & Research Services at Heriot-Watt University in Edinburgh, said when “you talk to universities, they often have complaints about the IP system.”

They want to exploit their innovations to increase reputation and standing, attracting students and qualified researchers, she said. But the patent granting system is seen as taking too long or too confusing. “You might miss the optimum time to go to the market,” she explained, and there is a threat of litigation, which is a problem as people “don’t understand how the legal system works.” IP protection is seen as a “black art,” she added, and there’s a “need to break down that barrier” and bring IP into the creative and innovation system.

Bridget Cosgrave, director general of Digital Europe said a high degree of harmonisation would cut down on the backlog, as would being able to do without translation. Recognising the diversity of Europe, it is still important to note that the universal language of business is English, she said. “Ideally, the entire patent system would operate in the English language.” But at least limiting translation into English, French and German and looking into machine translation would be “a step in the right direction,” she said.

“The world’s patent systems have felt the impact of digital technologies over a very wide spectrum. The ensuing public debate over the rights and wrong of our patenting practice is still ongoing,” said Brimelow at the opening speech, according to an EPO release. News of her departure was first reported in the blog of Intellectual Asset Management magazine.

What is clear is the vital importance of these issues, and their increasing attention in the public sphere. “Future competition in the world is IP competition,” said Granstrand, quoting Chinese Prime Minister Wen Jiabao. Patent and policy issues are such, added Granstrand, that they can no longer be left to traditional specialists. “Help is necessary from top tier political leaders.”