The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities.

  • Great Britain. Parliment. House of Lords. Select Committee on the European Communities.
Date:
1998
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Licence: Open Government Licence

Credit: The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities. Source: Wellcome Collection.

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    {Lord Plant of Highfield Contd] an office which already is to a degree inefficient and is managing what is perceived to be an inefficient system can somehow be turned into something that not only runs the existing system with those inefficiencies but can also run a new system which is supposed to be more efficient, facilitate innovation and reduce costs. That may be a question from the depths of my ignorance but I would quite like some sort of reassurance on those questions? (Dr Reid) Ido not believe, my Lord, it is from the depths of ignorance. It is a very good question. There are two aspects to it. The European Patent Office’s main function is searching and examining the patent applications, searching for this prior art, what is free for the general public and what no patent should take away, both in terms of novelty and obviousness. Obviously if something is already disclosed, it lacks novelty. If the purported invention is obvious over what is disclosed, then no patent should be able to stop you doing it. So the search is to look for material against which novelty and obviousness can be judged and the examination is to make that judgment and that is done by officials in examining patent offices throughout the world. It is done at our United Kingdom Patent Office if it is for United Kingdom patents; it is done at the European Patent Office for European patents. On the whole the search and examinations are done efficiently. The delays occur mainly in appeal, and in oppositions. The second aspect is that my wording was misleading. Search and examination of applications for Community patents would not involve addition of a separate system. It would just be that the unitary patent application would go into the existing system. There might well be a choice on the part of the applicant at various stages as to whether he wants the end result to be a European Patent Convention bundle of patents or a unitary patent through the Community patent system, but the procedure would be exactly the same. So it is not adding something; it is making use of an existing system for another purpose. 55. It is adding complexity? (Dr Reid) It is adding very little complexity. It is the applicant’s choice. At the end when the European Patent Office has said, “We will grant,” then if the application is one for a unitary patent, what gets granted is a unitary patent. If the application has been one for a bundle, what gets granted is a bundle. So that is not more complex. Chairman 56. Is there any problem about allowing the applicant to elect at any particular stage which he is going for? (Dr Reid) I think third parties should know which one is intended but I would have thought that until grant the applicant should have the choice. But I feel I should return to Lord Plant’s question: it seems rather odd to give the task of granting Community patents to a body that we have just criticised, or I have just criticised. Lord Hoffmann has mentioned the great delays. I should expand on my response. There can be delays even in the search and examination but there are often very long delays in what is called the opposition period. If I file for a patent in the European Patent Office and the European Patent Office says that it is going to grant it, you would do your best to oppose it if your commercial plans possibly would be affected by such a grant. There is a period within which you could file such an opposition. A criticism that the European Patent Office is open to is that there are extreme delays sometimes in the opposition procedure and then your comment on my idea, or our idea, that the European Patent Office should be given this task is very pertinent. I suppose the only answer is in two bits: what are the other options? Is there even one alternative? Secondly, one can but hope that the current pressures to get the system more efficient will be successful, but I am not optimistic. 57. You are not advocating, are you, that the European Patent Office be given the jurisdiction to try questions of validity? (Dr Reid) No, but I heard Lord Plant asking, why entrust this important Community patent to a body we are criticising for having delays, to which there is no better answer than: I cannot think of an alternative. Lord Wedderburn of Charlton 58. Would the arguments come up pari passu, and perhaps make it a little more complex where we are looking at an application for revocation? (Dr Reid) I think that is correct. I suppose in principle it is extremely close to what happens in an opposition because in an opposition procedure the opponent is saying, “This should not have been granted.” One retreats behind—and it is not a reassuring factor for your Lordships—the proposal in the Green Paper on this that perhaps the reforms that are currently being pressed for in the European Patent Convention system will make these delays much shorter. Chairman 59. We have had differences of view from people we have received evidence from about whether, if there is going to be a Community patent, it ought to be introduced by Convention or by regulation. What is your position on that? (Dr Reid) I turn to Professor Adams. (Professor Adams) The thinking about this seems to have changed over the years. There was a point at which it was thought to be problematic whether the Community could legislate at all on intellectual property matters. That has clearly changed and | think the majority thinking of lawyers at the moment is that it would be possible to do it under the Treaty of Rome instead of having separate, free-standing legislation. 60. But I think there was a difference of view as to whether it was desirable. Obviously the advantage of doing it under the Treaty of Rome is that anybody who joins the Community is automatically stuck with it; it is an acquis communitaire, but there are also great