Annual Brussels IP Summit: Fresh Ideas In A Classic Context

BRUSSELS – In an age where technology and globalisation play an ever-increasing role, it must be asked whether the policy goals and structures of the intellectual property system remain relevant in Europe and beyond. In this regard, the newly elected “Junker Commission,” in office from 1 November, offers a chance to issue new IP strategies and strengthen the pre-existent IP infrastructures.

In light of such changes, the Pan-European Intellectual Property Summit (IP Summit) with its unique blend of keynote speakers and 25 workshops, running from reforms at the European and national levels to sectorial business practices across the spectrum of IP fields, provided once again a platform for fresh and critical ideas.

For its 9^th edition, the IP Summit produced by the Premier Cercle and its “knowledge partner” Hoyng Monegier, a specialised European IP law boutique, took place on 4-5 December in the prestigious Steigenberger Grandhotel in Brussels.

“If Europe Wants, We Can Fly on Any Comet”

The IP Summit was opened by Kerstin Jorna, director general for Internal Market and Service at the European Commission, who made three introductory observations on the growing importance of the innovation across Europe.

First, she said, “the time of the innovation cycle is faster than our imagination.” She took the Swedish example, constantly ranked at the top of the global innovation list, to show how a focus on all the dimensions of an eco-system of innovation can be significant. Sweden provides, among other things, “attractive private and public research, financial support, and a firm commitment of the public authorities,” she said.

Second, in her view “innovation is not only about ideas, it is about making ideas fly.” Jorna is convinced that “innovation is key to empowering the economy.” However, today Europe is still lagging behind the United States, South Korea and Japan when it comes to transforming ideas into new products, especially in terms of “R&D expenditure, public-private cooperation and innovation in education.”

While the lack of investment in new technology and innovation is another issue, this will be resolved by the “300 billion [euro] investment package,” presented last month by the EU president, she said.

“We need to create an environment in the single market to help ideas to grow,” she said, highlighting four points. These are: Finalising the implementation of the unitary patent (UP) package, which will benefit to the EU economy with a potential impact up to 0.5 per cent of the EU GDP; fighting against the counterfeiting in order to achieve a fair market; promoting pro-active public authorities, as intended in the new public procurement legislation; and encouraging standardisation, which remains a strong driver for innovation, such as the EU-China Standardisation Platform (CESIP), she said.

Also, to design this eco-system rightly, feedback from the industry side is crucial and platforms have already been launched, she added. IPR HelpDesk is one of the EU initiatives.

And finally, she said, “we need to discuss the flight condition for innovation…. Of course, the weather is very good in California, but we hope that the European weather is not bad either…. If the Europe wants, we can fly on any comet.”

Tips from the Japan and Israel Patent Offices

In a panel entitled, “Best IP Strategies from IP Offices Around the World,” the heads of the Japan and Israel patent offices outlined their respective agendas. Both offices focus on two key priorities – acceleration and globalisation – in order to tackle the growing competitive landscape.

In terms of acceleration, Japan Patent Office (JPO) Commissioner Hitoshi Ito said this year the office may successfully achieve its goal to shorten to 11 months or less the time from the request for examination to sending out the first notice of examination results. He added that by the end of 2023, the examination period as a whole is targeted to be reduced to 14 months or less on average.

Japanese enterprises generally expect to obtain their IP rights at the most ideal time for their business development, he said. To this end, while in the past the JPO examined an individual application for each field of patents, designs and trademark, in April 2013 it introduced a new initiative, entitled “collective examination for IP portfolio,” under which it examines applications and grants rights across fields for a company, explained Ito.

When it comes to globalisation, the JPO in 2006 was one of pioneers of the Patent Prosecution Highway (PPH) programme, and it continues to strongly support it in other countries, such as in Latin America, he said.

With the considerable rise of patent filings in China and Korea, the JPO has advanced further cooperation with the State Intellectual Property Office of China (SIPO), and the Korean Intellectual Property Office (KIPO) in a variety of areas, including comparing IP systems and examination practices in order to achieve more harmonisation among these three Asian offices, he said.

The JPO posted a report from the summit here.

The Israel Patent Office (ILPO), on the other hand, is a relatively “small and medium-sized” office, which has primarily attracted its nationals, who, as explained Asa Kling, the director of the ILPO, benefit from a unique innovative economy. Israel is often called “the start-up nation,” he said, with an investment of 4.7 percent of its GDP in R&D, according to the latest statistics of the Organisation for Economic Cooperation and Development (OECD).

In addition, in the Annual Report 2013, leading companies, such as Nestec, Qualcomm, and Novartis, have indicated their faith in the ILPO by filing hundreds of patent applications within the last year, he said. In fact, “more than 80 percent of the granted patents are to foreign applicants,” Kling said, showing that Israel has a “quite good and effective innovation scene.”

To satisfy this blend of sophisticated users, Kling said, “we have to compete” at both national and international levels “in order to maintain the quality of our offices.” Local law on unfair competition, for instance, could ensure more certainty for the patentees, “otherwise, they may even not try to apply,” he said.

But, he added, “we are also in a global game and we need to compete globally.” To cite one of ILPO’s initiatives, since 2012, the office became an International Searching Authority (ISA)/ International Searching and Preliminary Examination Authority (IPEA) for Patent Cooperation Treaty (PCT) applications.

Also, while Israel patent law is largely inspired from the tenets of the major established patent systems, in July 2012, innovative amendments were incorporated to provide expedited examination in the case of specific circumstances. Among these are: (1) suspected infringement, (2) medical condition or advanced age of the applicant, (3) upon third party request, (4) public benefit, and (5) green innovation, he said.

And from January 2015, the ILPO and the EPO will launch a fast-track patent examination procedure between their two offices, according to a recent press release.

As a potential point of comparison with the future European unitary patent package, since 1998, the ILPO has provided a “modified examination.” Similar to “an automatic grant,” said Kling, “over these days, such option declines,” and questions remain pending over its enforcement in local law, he said.

“EPO, the Best Patent Office in the World…”

Another panel concentrated on the “Recent Developments in the European Patent System,” which still seems to be enjoying the reputation as “the best patent office in the world,” EPO President Benoît Battistelli told Intellectual Property Watch. He said “it is not my opinion,” but according to user satisfaction surveys, which he said were independent, the quality of the services delivered by the EPO increased from 74 percent to 78 percent from 2010 to 2014.

Patent applications filing at the EPO continues to increase by roughly 2 percent each year, said Battistelli. Interestingly, 65 percent of these filings are from non-EPO countries, especially the United States, Japan and China, accounting for 25 percent, 20 percent and 8 percent of the total, respectively. Germany, with 12 percent of the total, is the top EU country.

While these figures show that “Europe is a leading market for innovation in the world,” Battistelli told Intellectual Property Watch, others demonstrate that “Europeans are also a very active player in the field of innovation,” meaning that “we export more patents than we import.” For instance, there are twice as many patents applied for by EU companies in the US than there are applications applied by US companies in Europe. The only exception is Japan, where we face “a deficit in the patent balance,” he said.

Medical technology, electrical machinery, apparatus and energy, and digital communication remain the main technical fields of patent applications in Europe, said Battistelli. But there was a decrease in the pharmaceutical and biotechnology areas, which he said may lead to potential reflections around the current EU biotechnology legislation.

Confronted with an increased number of complex applications, the EPO is focussing on its key priorities of quality and efficiency, he said. On this basis, few years ago the EPO launched five strategies – around IT, human resources, building, quality, and cooperation – which have already provided positive results, he said.

He added, however, that “these reforms are causing some social difficulties within the offices,” but he considered that as “a classical resistance to change.” This may have been a reference to management problems at the EPO over the past month (IPW, European Policy, 10 December 2014).

Meanwhile, in Battistelli’s view, the main challenge for the future is further global harmonisation of the patent systems, distinguishing between two levels of harmonisation: technical and substantive.

The IP-5 Move to Harmonisation

With respect to technical harmonisation, the EPO represents Europe and participates in the “IP-5 offices,” a cooperation forum with the patent offices of China, Japan, South Korea and the US aimed at modernising the global patent system. “The EPO has already been very active,” but “technical cooperation is underestimated, as it is very technical and very complex,” he said. “The general public is not so aware of the enormous progress achieved there.”

Among its actions, the EPO and China’s SIPO have opened the first part of a new service, called the “Global Dossier,” that displays European and Chinese dossier content on a family of patent applications, according to an EPO release. And “we are still expecting the Japanese to provide their data quickly” to the Global Dossier, said Battistelli.

Currently, the IP-5 is working on three specific technical issues: Unity of invention; sufficiency of disclosure; and 18 months of publication. It is hoping to see some concrete progress during the next meeting in China in May 2015, he said.

In addition, multiple Patent Prosecution Highway (PPH) agreements as well as data exchange policies are currently being undertaken by the EPO.

While the latter concerns harmonisation of substantive patent law, that remains a competence belonging to the EPO member states, but through for instance the Tegernsee process, the EPO has greatly facilitated and coordinated the EU position at the global scale, he said.

Discussions are now going on in the so-called Group B+, quite positively, said Battistelli, and could lead to concrete progress. More in favour of multinational fora than bilateral fora to tackle this point, the EPO as well as industry are fairly reserved about the Transatlantic Trade and Investment Partnership (TTIP), he said.

Unitary Patent Path

With respect to the EU unitary patent package, “we are really on the last step of this long adventure,” and the first unitary patent could be delivered in 2016, Battistelli said.

Among the remaining steps, the issue of renewal fees – “which attracts a lot of attention,” he said – will probably be set by the Select Committee in June 2015. It aims at respecting three constraints: the system must be business attractive, budget neutral and take into account the fears of many EPO member states about losing some receipts in comparison with the actual classic EU patent system, explained Battistelli. He is convinced, however, that “we have the capacity to find a good balance.”

Despite Battistelli’s favourable personal view on reducing fees for small and medium enterprises (SMEs), that issue remains discussed and unless a collective decision is achieved, that will not be adopted, he said.

The ratifications of the Agreement regulating the UPC are still underway. To be effective, a minimum ratification by 13 EU members, including France, the United Kingdom and Germany, is required. France already approved it, and Battistelli said the UK and Germany will probably enact it by the end of 2015. The EPO president is convinced “we will have the 13 ratifications and probably more, by the end of 2015 or beginning of 2016.”

In response to criticism raised by some academics about risks of a hyper-specialised court, Battistelli said the Bundespatentgericht, or county patent court, provide a good example for Battistelli.

“Litigation on patents is really complex. It involves complex technical and financial issues. This is why we need technically and legally judges. One of the best ways to be qualified is to have large experience,” he said.

So far, some 1,300 candidate-judges have expressed their interest in the pre-selection process of the UPC. “I am convinced that it will be possible to select among these candidates,” he said. “I am very optimistic about the quality of future UPC.”

“When you create something new,” Battistelli concluded, “there are always people who are worried. The situation was exactly the same when the EPO was created 40 years ago … and now we are considered the best office in the world in terms of quality of our patents. It will be the same for the UPC.”

Joséphine De Ruyck was an intern at Intellectual Property Watch. She is currently finishing an LLM degree in intellectual property rights and ICT law at University of Leuven in Belgium. She holds a Master’s Degree in Law with honours from University of Louvain and an LLM degree from Queen Mary University of London. She has a strong interest in several intellectual property issues, especially access to health, climate change and new challenges facing copyright law.

 

Image Credits: PremierCercleTM