Quality is the issue

19 April 2011

The European Commission recently published the results of its “Patqual” survey, which asked European users for their views on the quality of the patent system in Europe. Obviously, it will never be easy to agree on a precise definition of patent quality, but this study does give some clear indications about how users see the system, and about their priorities and expectations.

First, I was glad to read in the conclusions that “Europe shows better results in comparison to other areas, especially when considering the search and substantive examination at the EPO”. For the EPO, that is absolutely fundamental: I am firmly convinced that as global patenting activity continues to grow it is all the more necessary to improve the quality of our work. Some may say that coping with the backlogs means promoting international harmonisation and exchanging work results at any price, even lower average quality. But I disagree, because low quality merely encourages more filings.

It is also worth noting that users rate compliance with the legal requirements for patentability far higher than any other criteria; timeliness, apparently, is less of a concern. This merely confirms the EPO’s own experience: the take-up rate for PACE, our fast-track procedure, is only 6-7%, even though there are no additional fees. What really matters to users is a prompt and comprehensive search report enabling them to take strategic decisions in good time. And for first filings, the EPO is currently succeeding in producing the search report plus written opinion on patentability within 6 months from the filing date.

But the European sky is not all blue. In the same study, European users again criticised the costs of the European system, linked to its fragmentation and translation regime which make it very difficult for them to enforce their rights. These barriers to competitiveness, especially for European SMEs, are of regrettably long standing.

Fortunately, however, the unitary patent now seems to be well on track; last week, the European Commission published two draft regulations and the EU institutions have expressed their willingness to give them due priority. I am pleased that the unitary patent will be granted by the EPO, under the EPC and its existing in-house procedures, to the same level of quality as traditional European patents. The real difference will be in the post-grant phase, when the patent holder requests unitary protection for the 25 participating member states.

The EPO is getting ready to take on the additional work that this will mean. Here, it is also of the utmost importance – for obvious reasons of equal treatment of all EPC contracting states – that the costs of these extra tasks do not affect the EPO’s budgetary equilibrium and are fully borne by the member states taking part. Because of the various fees’ potential impact on its budget, the EPO will have to be closely involved, one way or another, when the European Commission prepares its drafts. The Office is in close contact with the European Commission, the European Parliament and member states to ensure that these principles are respected and to help build a successful new legal instrument for the protection of innovation in Europe.

Benoît Battistelli


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