Patentability: maintaining the balance

12 September 2013

EPO President Benoît BattistelliNew IP challenges arise as new technologies emerge from R&D activities. This has been a pivotal issue for the patent system throughout its history, with the continual extension of its scope due to technical progress. In Europe, the mechanisms established 40 years ago with the signing of the European Patent Convention  have proved to be reliable and durable. They have supported the successful development of the European patent system, allowing for adaptation as the need arises. In some cases, the intervention of the legislator is required, to find a solution on a basis of negotiation and compromise. Ultimately, however, the success of the system rests on the efforts of the patent offices in ensuring the effective implementation of the legal provisions.

The criteria for patentability have to be clear and stable, but applying them is not always easy, as technologies become ever more complex, combining elements from various fields. For example, computer software and electronic components are widely used and integrated in many different sectors (the car industry, medical technology, telecommunications, household appliances, etc). In accordance with its Raising the bar strategy, the EPO has developed a quality-oriented, restrictive approach to patenting, e.g. in the area of computer-implemented inventions (CII) and business methods, but also in biotechnology, where the grant rate today is under 30% (compared to an average grant rate of 50% for all patent applications).

In Europe, the mere use of a computer in an invention described in a patent application does not automatically confer the required “technical effect”. This was reaffirmed in a recent decision of a Technical Board of Appeal of the EPO (T1670/07) dealing with a method and system of shopping with a mobile device to purchase goods and/or services. It is interesting to see a similar approach now emerging in other jurisdictions which in the past took a less rigorous line in defining patentability and interpreting the relevant criteria. This shift towards a more selective stance opens the way for a “soft” form of global harmonisation in patent law.

The case law and practice developed on the basis of the EPC have been instrumental in establishing a fair and balanced patent system, especially in critical areas that require close scrutiny. However, there is always room for improvement, and the EPO is committed to maintaining an enriching dialogue with the user community and the public at large, to ensure that the different interests are appropriately reflected.

Benoît Battistelli

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