On June 8, Alain Pompidou, President of the European Patent Office (EPO) from July 2004 to June 2007, shared his thoughts on the European patent system at a press conference in Brussels. 

Under Mr. Pompidou’s leadership, the rate of patents being granted by the EPO within three years went up from 20% in 2005 to 40% in 2007.  He also made sure that the EPO improved its relationship with the European institutions and became a strong supporter of the institutional reform process.  In 2008, Norway is set to join the 32 member countries of the EPO, and talks about a possible membership of the Balkan countries are ongoing.

However, while it is good news that the EPO has cut the time it takes to approve or deny a patent, there is still plenty of room for improvement.  Alison Brimelow, the new President of the EPO (Ms. Brimelow took over as EPO President on July 1, 2007), should make it a priority to speed up the process so that innovative entrepreneurs do not have to watch helplessly as their inventions are stolen while their patent applications sit on a shelf in the EPO year after year.   

According to Mr. Pompidou, 80% of firms applying for patents are SMEs, showing once again the important role small firms play in the innovation economy.  For innovative small firms in particular, it is important that patent applications are dealt with swiftly.  Otherwise, bigger competitors with already established distribution channels can easily copy the small firm’s invention and bring it to market while the SME is waiting for its patent application to be approved.

Pompidou, a Frenchman, emphasized that he firmly believes the London Agreement will be adopted by France within the next six months, eliminating the last obstacle standing in the way of the Agreement entering into force.  He also pointed out that the European Patent Litigation Agreement (EPLA) will likely be adopted within the next three to five years. 

If Pompidou is right, then this would constitute a great success for innovative companies in Europe. 

The London Agreement would abolish the requirement that within three months of the grant of a patent, the patent must be translated into the official language of each country in which the patent owner wants protection for his or her patent.  Instead, countries which do not share in common an official language with the official languages of the European Patent Office (English, French and German) would have to choose one of the EPO languages as "prescribed language" into which European patents would have to be translated in order to enter into force in their country.  This would cut by a significant amount the translation costs associated with obtaining a European patent, increasing the incentives – especially for small companies with limited budgets – to apply for a European patent.

France’s ratification of the London Agreement and the resulting entering into force of the Agreement would help innovative European companies to prosper, ensuring the continued competitiveness of the EU vis-à-vis highly creative countries such as the U.S., China, and India.

The EPLA, on the other hand, would create a single European jurisdiction and a single European court judging on cross-border patent litigation.  This would greatly reduce the time and money spent on patent litigation across Europe.  Since there would be a single set of judges, it would also significantly improve legal certainty in patent litigation. Moreover, the delays caused by multiple cases would be reduced.  For small innovative companies, this would represent a tremendous step forward, enabling them to focus on ensuring continued innovation rather than worrying so much about protecting their existing ideas.

Pompidou also believes that if there is enough political will, the Community Patent will become reality within an additional one to three years. 

The idea of creating an EU-wide patent that would save companies the cost and effort of having to apply for protection under different national patent regimes has been around for decades, but so far, the member states of the EU have not managed to agree on a final text for the regulation governing the Community Patent. 

As EU Commissioner Frits Bolkenstein noted in 2004, “

[t]he failure to agree on the Community Patent […] undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010.”  And then-Internal Market spokesman Jonathan Todd added: "It is extremely unfortunate that European industry’s competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests."

For small firms with limited budgets, the Community Patent could, in principle, be a much-needed tool for obtaining patent protection across a wide trading area at a reasonable price.

However, the Council’s Common Political Approach adopted in 2003 would not solve the problem of excessive translation costs.  This concern needs to be taken into account in the creation of an integrated EU-wide jurisdiction for patents.

Mr. Pompidou emphasized that his positions are shared by Alison Brimelow, the new President of the European Patent Office.  Hopefully, this consensus at the highest levels will lead to the swift adoption of the agreements that give Europe’s innovative companies the unified, accessible, and affordable patent protection they need.

In Europe, we are very proud of our long-standing intellectual tradition.  Over the last few millennia, we have created groundbreaking philosophical, musical, literary, and artistic works.  But in an intensely competitive world, we cannot afford to rest on our laurels.  Let’s give Europe’s most creative firms the tools that allow them to keep innovating and make sure that Europe cannot only look with pride to its past, but with optimism to its future.