"Permafrost" Of Pending Applications - Alison Brimelow: "I Am Coming To The Conclusion That The Backlog Will Not Be Mastered."
Sometimes it needs to have a full-time journalist conducting an interview with a key figure in order to to help on the blogosphere analysing certain facets of the reality of the European patent system. Today, well-known Mr Joff Wild from IAM Magazinewrites in his Blog:
"[...] In an exclusive interview with IAM, which took place in the Slovenian capital Ljubljana, venue for this year's European Patent Forum and European Inventor of the Year ceremony, EPO president Alison Brimelow said: 'I am coming to the conclusion that the backlog will not be mastered.' It is now time, she continued, to think about what must be done to ensure that the patent system can function adequately in this new environment. 'There are no silver bullets but there are a range of things that we could do - some of which will be more effective than others.' [...]"
"The backlog will not be mastered" - Ouch.
Also present at the interview was Mr McGinley, the Controller of the EPO. According to Mr Wild's Blog posting, Mr McGinley suggested that one way of looking at the backlog issue is that all the world's major offices now have a permafrost of pending applications. This, McGinley said, created real uncertainty. The US is already at a point where there are one million pending applications and Europe is forecast to be there within five years.
To me all this appears to be result of a grim reality check conducted by Ms Brimelow during herfirst year in office. Such exercises do not come to me as a surprise - they rather appear to be typical for this EPO President. I like her fresh thinking. But perhaps the crisis of the patent system is much deeper than thought by many, in particular by most of the patent profesionals. Is all this talk of "permafrost" and the phrase "The backlog will not be mastered" anything else than something like an announcement of a protracted bankruptcy of the global patent system as we know it today?
But what to do now? Mr Wild heavily stresses that it is important to make clear that Ms Brimelow, Mr McGinley and other members of the office's senior management are still in the very early stages of exploring what might be done. But Mr Wild has no doubt that there is some very deep thinking going on. in the interview, Ms Brimelow hinted that there are a number of developments that are leading to issues being explored in a way that would not have been possible two years ago. One of these, she said, is mutual recognition.
Mutual recognition - on the stage of the Trilateral Co-operation this could mean that, under some formal conditions, that a patent granted by EPO immediately would have legal effect in, say, the US. So far - well. But - of course: Any realistic scenario also would comprise the other way round: A patent granted by the US-PTO should also, under some formal conditions, have legal effect in Europe. Taking aside current differences in substantial patent law of the US and EU (which would have to be harmonised anyway before any recognition solution could be seriously considered) - is there really a chance in any foreseeable future that such mutual recognition would be accepted by the respective societies involved?
I think that it is most important that such developments will be discussed in an open manner. Hence, I appreciate that Ms Brimelow has given early indications. But what will follow in the coming years should not be an exercise in secret diplomacy, in the end presenting a revolutionising set of perhaps drastic measures as a result of widely intransparent negotiations. Doing so might seriously hamper much needed broad acceptance of any big solution by the general public.
Ms Brimelow's utterances are given serious consideration in the USA, where i) one million apps are pending, and the pile is growing fast ii) the USPTO Rules package has just been thrown out by the courts and iii) the Reform Bill has just failed in Congress. The intended readers of this IAM interview are in the USA.
In my experience, the ones quickest to pronounce others to be "out of their depth" are themselves the most likely not to see all the angles.
We have seen in recent times how impossible it is for any American to suggest that anything is wrong with the US patent system. We see the CAFC, in Bilski, about to re-confirm that business methods are fit for patenting. No wonder the backlog in the USPTO can't be mastered. But in the EPO? That's a different kettle of fish entirely. My hunch is that the international corporate filers are going to be more discriminating, and file fewer cases at the EPO this year, prompted by a world-wide expressions of distaste (US Supreme Court and CAFC, also the EPO TBA level, and below) for "trivial" patents. Which backlog is Alison musing on? My bet is that it's NOT the one in the EPO. My guess is that with her remarks she is aiming to catalyse change in the USA. Out of her depth? I think not.