|Bowles, David, Breyer, Hiltrud
|Vol.11, No.29, 28.7.05
Two MEPs give their views on whether the EU is doing enough to protect its intellectual property
The slow procedure for granting patents is devastating for European companies and needs to be improved, says Sharon Bowles
Europe has certainly tried, if not always successfully, to improve intellectual property procedures. It has usually taken far too long.
Patents, trade marks, designs and utility models have all been the subject of EU-wide registration proposals. The Community Trade Mark and the Community Design are both up and running through the Office for the Harmonisation of the Internal Market (OHIM). The cost is much less than country-by-country registration and decisions by the European Court of Justice are providing common case law - subject to the variation and refinement that always occurs for contested intellectual property matters, simply because only difficult, marginal cases are contested.
The Community Patent is being delayed by failure to agree on a single language. The Community Utility Model has had two first readings in the European Parliament, but since 1999 has been awaiting the attention of the Council of Ministers. The proposal has drawbacks, but it may well merit a dust-down and review.
Other harmonisation attempts, for computer implemented inventions (CII) and exemption from design protection for spare parts, have been directed at modifying non-community law. CII received its rejection at Strasbourg earlier this month and it is rumoured that, whatever the Parliament decides, the spare parts matter will be vetoed in Council.
What to do now? Well, the urgency is to make obtaining patent protection on an EU-wide basis cheaper and quicker. It would be best if that were by way of the Community Patent because that deals with both the granting process and post-grant matters such as validity and enforcement. Getting this done is constantly quoted as important for the Lisbon Agenda, but it is absolutely imperative that it proceeds beyond rhetoric. Much damage to European business is caused by national intransigence on the Community Patent.
The European Patent Convention, a stand-alone treaty separate from the EU treaties, only deals with the granting procedure for patents. It was a huge improvement when it started in 1978 and has brought about much harmonisation even in post-grant matters. But now it is seen as slow and expensive compared to the US system, even without taking the cost of translations into account. For fast-moving technology like electronics, many patent attorneys are beginning to ask whether their clients might be better off filing national patent applications again. The European Patent Office (EPO) new procedure, from 1 July, for a patentability 'opinion' to accompany the search report, is a move in the right direction, but full examination and grant must also be quicker.
Alain Pompidou, president of the EPO, queries the quality of US patents compared with European ones. European examination is generally more thorough and expert, but it is wrong to suggest that US patents are granted without serious examination so that it is all left to litigation. The US system is by no means perfect and also covers things that nobody wants in Europe (like business methods) but its speed is certainly better adapted to modern, fast technological development.
For small- and medium-sized enterprises, which for the main part are only interested in the European market, the delay in grant of patents is often devastating to seeking investment or licensing. But it also affects our large businesses. Some may doubt this in that it is open to US companies to file patent applications in Europe (which they do with enthusiasm and in high volume) and for European companies to file in the US, and so both suffer the vagaries of both systems.
But there is always a stronger position, in marketing and negotiation, when a company has its home market covered by a granted, and therefore enforceable, patent. US companies enjoy this extra benefit sooner, in addition to the advantage that they also derive from being in a generally more entrepreneurial environment.
Granting patents for discoveries and not only inventions is a hindrance to technological development in the EU, argues Hiltrud Breyer
Looking at the issue of protecting intellectual property in Europe, there seems to be a clear-cut case: granting patents to scientific and technological discoveries is thought to help secure investments and to have positive effects on competition. But in fact the current picture in the EU is one of over-compensation with patents, where discoveries are being patented and not just inventions. This not only hinders development, but also has negative effects on us as consumers and citizens. What is therefore at stake is not a better protection of intellectual property, but a safeguarding of creative competition, from which everyone in Europe will benefit.
Recent developments exemplify the massive problem with granting too many patents for mere discoveries. By rejecting the European Commission's proposal for a directive on the patentability of computer implemented inventions, the European Parliament took a strong stand for ensuring creative competition, technological progress and consumer protection in Europe. Only big companies would actually benefit from such a patent directive. For small- and medium- sized enterprises, the proposed directive would have been a disaster: they would have had to pay high fees for having to register patents and would not have the financial security to engage in lengthy legal proceedings. For consumers, the directive would have meant that we would very likely have to use the operating system and software of one company, because software patents would interfere with developing inter-operational programs.
Consider the bio-patent directive. Even at the time of its adoption in 1998, the bio-patent directive was scientifically outdated. It should have been seen as ready for a complete overhaul at the latest when the human genome was sequenced. We now know that 40-60% of human genes are multifunctional in their composition. It is simply not justified, scientifically or commercially, to grant these various functions to a patent applicant, when this applicant has only sequenced one gene and identified an initial commercial application and, at the time of the patent application, additional functions are neither known nor detected. With its recent report on the bio-patents directive, the Commission indirectly had to acknowledge these shortcomings and inconsistencies.
The issue at stake is whether every discovery can be considered worthy of a patent. We need to make a stronger distinction between a discovery and an invention. If you look at human genes, the difference between discovery and invention becomes obvious. The bio-patent directive allows for far-reaching patenting of human genomes, of parts of the human body, of plants and animals. But human genes are not simply substances, but information-carriers within a complex operating structure. As such they are not an invention, but a discovery. Why should it be possible to grant a patent then, denying others commercial use?
Granting patents too quickly for something which is a mere discovery can actually halter technological and scientific development and is likely to prevent absolutely crucial research being carried out.
The bio-patent directive also reveals another problem: it does not offer any protection against the commercialisation of human life. Greenpeace has just revealed that the European Patent Office (EPO) granted a patent on the selection of a child's sex, when that child was conceived in vitro. The patent comprises the technical process as well as the germ cells itself. This was the first time a germ cell was granted a patent. In 2005 alone, the EPO has already granted 100 patents on genes, 50 on seeds and plants and 20 on animals.
There is no justification for the current trend to over-compensate with patents in Europe. A complete renegotiation of the bio-patent directive, as well as a reconsideration of general assumptions about what we consider discovery and invention is therefore absolutely necessary. All of us supporting innovations have an interest in stopping these developments going off course.
Two MEPs give their views on whether the EU is doing enough to protect its intellectual property.
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