The European Patent Office (EPO) recently issued recommendations for improving Europe’s patent system. The report, prepared by the EPO’s Economic and Scientific Advisory Board (ESAB), focuses on the importance of patent quality, the role and structure of patent fees, and the challenge of patent thickets.
The primary issue addressed in the recommendations is patent quality. “Today there is a widespread concern that patent quality is deteriorating and that low patent quality threatens the functioning of the whole system,” ESAB said. “The Board points out that improving patent quality will require action at both the pre-grant and the post-grant stage.”
At the pre-grant stage, the ESAB report concluded that how prior art is made available, searched, and disclosed in patent applications could be further improved. It also noted that international patent offices should make better use of their collective knowledge by sharing information during the search and examination process.
At the post-grant stage, recommendations to eliminate low-quality patents included opposition or re-examination proceedings at patent offices and revocation proceedings at national courts. Areas of particular concern cited in the report are the speed of such proceedings and their consistency across jurisdictions.
With regard to fees, the ESAB said that “there is no urgent need for a fundamental patent fee reform.” However, it did note that the current fee systems in Europe may require some fine-tuning, noting that harmonized policies at European level could help to avoid low-quality applications, reduce complexity and discourage certain patent filing practices. The ESAB also cautioned that any fee changes should not complicate the system. “Any change to the existing fee structure should have a clear rationale, and beware of unintended consequences,” the report stated.
As the term suggests, a patent thicket usually involves (1) multiple patents on (2) the same, similar, or complementary technologies, (3) held by different parties, making it difficult to negotiate intellectual property rights (for example, licensing agreements) to the point where some scholars feel it might be socially inefficient.
In their report, the ESAB concluded that patent thickets could be addressed by looking to its underlying causes. “The Board does not regard patent thickets as a root cause of problems,” the ESAB concluded. “Rather, measures to improve patent quality will reduce the complexities of dealing with patent thickets.”