Press release
The European Patent System Needs Substantial Improvement
The European patent system faces serious
challenges which, if left unchecked, threaten to
damage the European patent system and hamper
innovation in Europe. These challenges, and ways
of meeting them, have been identified in the report
“Policy options for the improvement of the
European patent system”. This report has been
commissioned by the European Parliament’s panel
for Scientific Technology Options Assessment
(STOA).
Contrary to popular belief, the report concludes,
more patents do not necessarily lead to more
innovation. And, also contrary to popular belief, the
sole purpose of the patent system is not to reward
inventors for their inventions.
sing number of patent applications is putting
intense strain on the patent system, causing problems
for the patent examiners and a risk of falling
standards as to the quality of the patents. The
challenge is to manage the extra and severe pressure
being placed on the examining offices while at the
same time maintaining the highest quality possible.
Another
undesirable
consequence
of
the
development is a dampening effect of the incentive
to innovate in the first place, mainly because the
costs associated with inventive activity have risen
considerably. Rising costs reflect, among other
things, overcrowded and overlapping sets of patent
rights in specific research areas.
Challenges to the European patent system
The granting of patents, the report states, serves the
overall purpose of enhancing social and economic
welfare. It does so by means of encouraging
innovation and the diffusion of inventions, but the
exclusive rights of a patent granted to inventors must
be balanced against the overall objective of putting
this invention to use and letting other innovators
build upon it. Strong patents (i.e. patents of adequate
length and breadth) can encourage invention, but
too strong patents (i.e. too long and broad ones) will
both stifle innovation and reduce welfare.
•
•
•
•
•
Coping with a rapidly increasing demand for
patent rights without compromising the quality
Ensuring that too broad patents are not issued in
Europe
Alleviating the effects of patent thickets
Freeing company resources from trading patent
rights and licensing.
Ensuring an increased level of transparency and
political engagement
Current trends in the European patent system and the
challenges they present are jeopardizing the balance of the system. Most importantly, the increa-
_________________________________________________________________________________________________
The report - Policy options for the improvement of the European patent system - can be downloaded from STOA’s
website: http://www.europarl.europa.eu/stoa/default_en.htm
The Danish Board of Technology project website: http://www.tekno.dk/stoa-patent
Action is needed to rebalance the patent system – this
includes that: The mission of the patent system
must be made clearer; the quality of patents
must be more vigorously addressed in the
examination procedures; emerging technologies must
be more carefully dealt with; access to patented
knowledge should be improved; and alternative
licensing regimes seriously considered.
The authors of the report support the introduction of
a Community Patent, but consider the issues dealt
with in this report to be of a more fundamental
character. Should the Community Patent be
introduced, the policy options put forward would
have an even better effect.
These, and many more conclusions, have been made
by an independent, inter-disciplinary working
group, which has
consulted a
number of
stakeholders from industry and academia in the
process of writing the report. The project was
managed by The Danish Board of Technology on
behalf of The European Technology Assessment
Group (ETAG), from whom the STOA panel in the
European Parliament has commis-sioned the study.
It has been supervised by the Chairman of the STOA
panel, Mr. Philippe Busquin, MEP.
Insertion of the economic mission of the
patent system in the European Patent
Convention
Policy options presented in the report
•
Insertion of the economic mission of the patent
system in the European Patent Convention
•
Enhancing governance within the European
patent system
•
Improving quality aspects in regard to patentability standard and patent grant procedures
•
Dealing with emerging technologies
•
Increasing access to patented inventions
•
Facilitating defensive publications
Below are more details on four of the policy options
presented in the report. Apart from these options, the
report includes an analysis of the historical impact of
the European patent system on innovation and
diffusion of knowledge, and it also discusses the
objectives of the patent system and presents and
analyzes emerging patent trends.
Policy options (extracts from the report)
The recommendation on insertion of the economic
mission of the patent system in the European Patent
Convention involves the introduction of a preamble
into the legislation. This insertion would state in
clear terms what the purpose of the legislation is,
namely: to promote social and economic welfare.
A suggestion for the wording of the preamble is as
follows:
“The granting of patents serves the purpose
of enhancing social and economic welfare
by means of encouraging inventions and
their diffusion. The protection provided by
patents should be sufficient to ensure proper
incentives to inventors. This should imply
that patents should be granted in a
proportionate and transparent manner, so
as to ensure legal certainty”.
The preamble should be placed in the European
Patent Convention and if the European Union is able
to come forward with a Community Patent that same
preamble is proposed to be included in the
Community Patent legislation. The effect of a
preamble with regard to for instance, emerging
technologies, would be to guide legislators and to
ensure the legislator considers whether the
application of the patent system to an emergent
technology makes sense from the point of view of
the economic mission of the patent system.
_________________________________________________________________________________________________
The report - Policy options for the improvement of the European patent system - can be downloaded from STOA’s
website: http://www.europarl.europa.eu/stoa/default_en.htm
The Danish Board of Technology project website: http://www.tekno.dk/stoa-patent
Improving quality aspects in regard to
patentability standards and patent grant
procedures
The central challenge is that at present, the patent
system seems to have a certain bias towards granting patents, which risks lowering the bar for
obtaining a patent. The sheer volume, size and
complexity of patent applications combined with the
pressure coming from applicants and their
representatives seeking a positive outcome, creates a
structural pressure on patent offices to grant patents.
In order to strengthen the patent system and create
stronger patents the report recommends focusing on
two aspects: (i) the way in which patent offices
apply the given standards for patentability, and (ii)
the standards themselves. Looking at the standards
concerns the question of what is an invention and
when is it valuable to be granted a patent for. The
report suggests taking a closer look at the concept of
inventive step to see if it is still fulfilling the
function it is meant to have. Besides this, the report
includes recommendations to involve third parties in
the collection and evaluation on prior art.
Dealing with emerging technologies
The report observes that the patenting of emerging
technologies gives rise to special concerns about
patent quality in relation to both the patent system
and the individual patent. The quality problem at the
system level is about setting the standards for
patents and deciding on what is and what is not
going to be considered patentable subject matter. At
the executive level, this means the European Patent
Office (EPO), and the quality problem relating to
emerging technologies deals with applications of
patent standards in individual cases before the EPO.
The special problems in emerging technologies in
this regard are that prior art can be limited and hard
to find for an EPO patent examiner. In order to
establish the state of the art, the examiner relies
mostly on written sources e.g. prior patents or
applications, text books, etc. In mature technolo-
gies such as mechanics, these information sources
are plentiful, well-organised and largely known to
examiners. In contrast, in emergent technologies
such as biotech, the amount of information available
is considerably less and might also be much more
difficult for examiners to obtain than is the case with
more mature technologies. In order to avoid these
sorts of problems, the report suggests to boost the
executive level by allocating additional resources to
EPO examiners to better assess prior art and avoid
too broad patents being granted, and finally, to
ensure ongoing deliberations between politicians,
experts and stakeholders on what is and what is not
patentable.
Alternative licensing regimes
Patents that crowd the market can create a patent
thicket that can make it difficult for an inventor to
enter the market. In order to overcome a patent
thicket, negotiations will have to be started with
each and every patent owner in order to obtain
legitimate access to the patents and necessary
licences. The report suggests two different measures
in response, which would help facilitate access to
existing patented technology. One is the license of
right, which is a legal mechanism by which a patent
holder voluntarily chooses to give general access to
anyone willing to pay a certain license fee. The other
possibility suggested is to facilitate access to a web
of patents by the establishment of collective rights
management models such as patent pools and
clearing houses.
_________________________________________________________________________________________________
The report - Policy options for the improvement of the European patent system - can be downloaded from STOA’s
website: http://www.europarl.europa.eu/stoa/default_en.htm
The Danish Board of Technology project website: http://www.tekno.dk/stoa-patent
Members of the working group behind the report:
•
Mr. Robin COWAN, Professor of economics, BETA, Université Louis Pasteur and UNU-MERIT, Universteit
Maastricht, [email protected]
•
Mr. Wim Van der EIJK, Principal Director International Legal Affairs and Patent law, EPO, [email protected]
•
Mr. Francesco LISSONI, Professor of Applied Economics, University of Brescia,
[email protected]
•
Mr. Peter LOTZ, Head of Department of Industrial Economics and Strategy, Copenhagen Business School,
[email protected]
•
Mrs. Geertrui Van OVERWALLE, Professor of IP Law, University of Leuven, Belgium,
[email protected]
•
Mr. Jens SCHOVSBO, Professor, University of Copenhagen, Faculty of Law, [email protected]
•
Mr. Matthew ELSMORE (rapporteur), Assistant professor, Aarhus Business School-University of Aarhus,
[email protected]
Please note that responsibility for the content of the report is retained solely by the authors and the opinions
expressed therein do not necessarily represent the position of the European Parliament, or any other institution.
For further information about the project, please contact
Bjørn Bedsted, project manager
The Danish Board of Technology
E-mail: [email protected]
Telephone: +45 3332 0503
Signe Skibstrup Blach, project assistant
The Danish Board of Technology
E-mail: [email protected]
Telephone: +45 3332 0503
ETAG (European Technology Assessment Group) www.itas.fzk.de/etag/
STOA (Scientific Technology Options Assessment) www.europarl.europa.eu/stoa/default_en.htm
_________________________________________________________________________________________________
The report - Policy options for the improvement of the European patent system - can be downloaded from STOA’s
website: http://www.europarl.europa.eu/stoa/default_en.htm
The Danish Board of Technology project website: http://www.tekno.dk/stoa-patent