EPO Advisory Board Makes Recommendations For Patent System: Patent Quality Is Key

The year-old Economic and Scientific Advisory Board (ESAB) of the European Patent Office has concluded a one-year study of patent thickets, quality and fees, finding that many problems in the patent system could addressed by better patent quality. This means it is not necessary make a fee adjustment or have a major overhaul of the patent system at this time, it said.

“The Board does not regard patent thickets as a root cause of problems,” the ESAB said in a statement, which cited slowness and cost as concerns. “Rather, measures to improve patent quality will reduce the complexities of dealing with patent thickets.”

On the question of costs of patents, the ESAB said “there is no urgent need for a fundamental patent fee reform,” though some harmonisation of European fee systems might be in order.

The ESAB statement, today’s press release, and a report on patent thickets are available here.

The ESAB, which is supported by the EPO chief economist, is “composed of experts who represent companies, research establishments, universities and other institutions in Europe, Asia and the USA and are familiar with the patent system,” the EPO said in a release at the launch of the ESAB in January 2012. The list of experts named to the ESAB is here.

In its inaugural meeting a year ago, the ESAB decided to focus on patent thickets, patent fees and patent quality. It spent the year under the leadership of Prof. Dietmar Harhoff of Ludwig Maximilian University (LMU) in Munich, and conducted investigations and workshops during the year.

The group’s work came in response to generally held concerns about the patent quality and the patent system.

“Today there is a widespread concern that patent quality is deteriorating and that low patent quality threatens the functioning of the whole system,” ESAB said. “The Board points out that improving patent quality will require action at both the pre-grant and the post-grant stage.”

Measures at the pre-grant stage could need to address speed and quality of examination, it said, and patent offices should better use collective knowledge by sharing information during search and examination. For the post-grant stage, attention should be given to improving opposition or re-examination proceedings, it said. Also, “more efficient and less expensive litigation systems as well as reliable alternative dispute-resolution mechanisms may further improve patent quality.”

An advisory board workshop held in September reached some conclusions about patent thickets, though experts varied on whether thickets are a problem. A suggestion was made that patent thickets mainly occur in technological areas with significant market potential, the report found. But even in this case, they argued that it is low quality patents, plus slowness and cost, that are causing the problems. Nevertheless, the group saw a close relationship to innovation management and its complexity.

The report broke down the concept of “cost of complexity,” as it relates to different types of stakeholders. It found, among other things, that smaller firms and individual inventors have difficulty overcoming the cost of complexity.