Policy Options for the Improvement of the European Patent System
Wim Van de Eijck
European Patent Office
University of Brescia; CESPRI, Bocconi University
Copenhagen Business School
Geertrui Van Overwalle
University of Copenhagen Centre for Information and Innovation Law
September 4, 2007
Scientific Technology Options Assessment (STOA) of the European Parliament, 2007
The present report is based on an independent, policy-oriented investigation of the current European patent system. The central premise of the report is that the patent system has so far been a positive factor in promoting innovation and the diffusion of knowledge, and thus that the system is contributing in a constructive way to economic and social welfare objectives. In acknowledging the importance of the patent system in relation to many aspects of society, it is also essential to continually evaluate whether the system is working as effectively as it could be. In addition, because of some of the influences coming to bear upon the system at the moment, as well as the various ways in which it has been operating, the workings of the European patent system especially merits close public attention.
However, it is not the objective of the report to evaluate whether a patent system should exist. Rather, the investigation works from the starting position that the system is there, and so the main thing to do is to try to improve its workings. This is because the Working Group believes that the European patent system may be operating in certain ways and within certain sectors such that there is room for various improvements to be made. To do this, the Working Group puts forward a series of policy options. The Working Group supports the introduction of a Community patent and a European Patent Court, and the policy options presented in this report should not be seen as an alternative for this ultimate goal. They have been developed to improve the system as it is known today, since the Community patent is not guaranteed to be introduced in the near future. Should it be introduced, the Working Group considers that many of the policy options put forward would have an even better effect.
When making its recommendations, the Working Group recognizes that the protection and enforcement of the rights of inventors through the patent system must be done in a manner to stimulate innovation and the diffusion of knowledge. In order to propose meaningful policy options that meet these objectives as much as possible, the evidence put forward in the report includes an assessment of key patenting activity trends occurring at the moment. The analysis assesses what kind of impact these trends have on the ability of the European patent system to work well, and what are the specific challenges that arise as a result.
The report identifies that worldwide, the most important patent trends happening now relate to the number of patent applications being made. Specifically, the fact that applications received by patent offices continue to grow steeply, resulting in high numbers of granted patent rights. One potentially undesirable consequence of this development is a dampening effect of the incentive to innovate in the first place. This is mainly because costs associated with inventive activity have risen, often substantially. Rising costs reflect, among other things, overcrowded and overlapping sets of rights in specific research areas. Another effect of increased numbers of patent applications is the extra and sometimes severe pressure it puts onto examining offices and the sheer volume and complexity of the applications received.
These sorts of trends fundamentally challenge conceived notions of the patent system. The Working Group believes that left unchecked, this will have a damaging effect on the European patent system. The main impact is that there may be a deteriorating effect on patent quality in terms both of the clarity and balance of individual rights given to inventors, and the effectiveness of the system as a whole to meet economic and social welfare aims. The discussion about patent quality emerges from the report as the core underlying challenge to the future of the European patent system. The key task is to try to manage the growing patent workload while at the same time, maintaining the highest quality possible.
Another significant challenge identified is that new subject matter and science-based inventions are making it harder for examiners to accurately assess patentability requirements. And this may mean that undesirably broad rights are being granted in emerging technologies.
No single all-embracing policy strategy is able to meet these and the other challenges identified in the report. Instead, the Working Group believes a package of interrelated options is more suitable. This reflects the intricacy of the policy situation and mirrors the many connected and complex fields involved. For instance, the workings of the European patent system are closely related with rules about EU competition law, and policy initiatives regarding science and innovation. For these reasons, the policy options put forward are varied in scope and in method, and aim at tackling specific areas of concern.
The policy options put forward by the Working Group for the improvement of the European patent system are presented and discussed fully at the end of the report. Below is a simple list of the titles of the options: 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 standards and patent grant procedures; Dealing with emerging technologies; Increasing access to patented inventions; Facilitating defensive publications.
The Working Group strongly urges careful consideration of these policy options, one by one and as a group of proposals. They are complementary and carefully designed to improve the functioning of the current European patent system. All other things being equal, if these options are not taken up the European patent system will continue to face increasing pressure as a result of wider and deepening trends that are occurring at both a regional and international level. The main end result of this will be an ever-decreasing level of quality that the European patent system is able to provide, as regards inventors and society. This may result in a negative impact on economic and social welfare. And even though, given the limitations of scientific research, it may not be realistic to describe these effects precisely, it is nonetheless the overriding feeling of the Working Group that positive action of the kind suggested here is much better than no action at all.
The analyses made and policy options put forward by the Working Group have been developed between May 2006 and May 2007. The members of the group have volunteered their input and they have met five times to discuss the report contents and commented on various drafts mostly through e-mail communication. In November 2006 at a workshop in the European Parliament, policy options were debated with politicians and a wide variety of experts and stakeholders, and the report was peer reviewed. The report has been developed within these limits and does not intend to build on new research, rather collecting and (re)organizing existing knowledge about the patent system. The Working Group recommends initiating new and more comprehensive empirical investigations and debates of a similar kind of nature to this report
Number of Pages in PDF File: 71
Keywords: Patent law, Patent policy, Competition law, Justification, Objectives, EU patent, Community patent, Knowledge society, Knowledge diffusion, Patent thicket, Patent quality, University patents, Mission statement, Governance, European Patent Office, Access
JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L4, L 65, O13, O31, O32, O34Accepted Paper Series
Date posted: December 5, 2010 ; Last revised: August 31, 2012
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