The Political Legacy Of Ms Alison Brimelow

• Workload Challenges: In 1999, when Ms Brimelow first attended the Administrative Council meetings of the European Patent Organisation as the Head of the UK delegation, the EPO received 122 000 applications. In 2008, the last year for which audited data are available, that figure was 226 000 applications. The patent system is becoming a victim of its own success. Recently, backlogs have been ballooning. While at the EPO some 490 000 files are expecting treatment, the JPO has to deal with around 870 000 unexamined files, and the USPTO with around 810,000. Ms Brimelow expects these numbers to increase further despite the current crisis, albeit at a lower pace.
• Public scrutiny and its consequences: The need for simplification, new areas of friction: In Ms Brimelow's view, the past decade is the period in history during which the growth in patent filings has increased the most rapidly, propelling patents from an arcane legal instrument to a trendy IP right of unprecedented economic importance in our current innovation- and information-driven global society. This prominence has brought with it a heightened level of public scrutiny. For most of its history, the patent system operated more or less in obscurity, remaining the province of relatively few specialists in the field. Now, however, everybody not only thinks they know what a patent is, but they also have an opinion on the patent system. Ms Brimelow further argues that our current debate is not necessarily a well-informed one. The patent system remains complex and abstract and when civil society and politicians begin sticking their oar in, the result, more often than not, is a muddying of the waters. All IP is a trade-off between short-term costs and long-term benefits. The function of the patent system is imperfectly understood and often misapprehended, and as a result, the social contract which it creates is being increasingly questioned. Nevertheless, public opinion now influences IP policy debates and is a driver for change, albeit sometimes based on dangerous misconceptions and oversimplifications. In this context, Brimelow thinks that education is fine, but she doesn't believe that the recurring wail from those in IP that "if only they (the critics) would understand" all would be well is true. Moreover, would suggest that most of us are missing a very important point: the patent system is simply far too complex for its own good or anybody else's, and this complexity increases exponentially in the international arena. It is necessary to simplify the patent system, and particularly in terms of global initiatives, there is a need to reduce the level of complexity where possible.
• The patent system: Fit for purpose? According to Ms Brimelow, there is much concern today - including at the EPO - about all sorts of applicant behavioural pathologies, such as gaming of the system, patent thickets, defensive patenting, patent trolls and assorted manifestations of pre and post-grant anticompetitive behaviour. Defining the limits of patentable subject-matter in "new" areas - living matter, computer-implemented inventions, business methods - is a source of unease in the civil society on policy grounds. In addition, these definitions are difficult to articulate into predictable and consistent norms, raising tough issues for patent offices, regulators and courts alike. Internationally, talks on the further development of an international patent system have ground to a halt, more or less taken over by less-developed countries, in pursuit of adherence to and compliance with the Convention on Biodiversity, to further the Development Agenda and otherwise hinder the further international integration of patent systems which is - in my view - wrongly perceived to be solely in the interest of industrialised nations.
• Financial issues: Ms Brimelow argues that generally, in Europe, policy-makers tend to overemphasise the benefits of patenting. Because patents are potentially very lucrative, there is a perception that innovators cannot do without them. For years, probably partly due to the increasing emphasis on the patent as a property right - rather than a privilege, as it was historically conceived of - there has been a tendency to consider that cheap access to patents should be guaranteed for all. However, at the EPO, despite their reputation for being expensive, successful patentees still subsidise the system through the payment of renewal fees, allowing many applicants to navigate the system below cost, often embarked on "what the heck" applications which end up clogging the system. I believe that our fees should be structured so that only meritorious and seriously drafted applications are filed by applicants who then pay the cost-covering fees for the work performed by the Office. No more, no less. Ms Brimelow sees, in the case of the EPO, a need to review the fee structure, and she believes the outcome would undoubtedly make initial access to the patent system financially more onerous.
• Harmonisation (SPLT, EU patent): Ms Brimelow states that what is needed in view of workload issues and the rationalisation of processes - and everybody knows this - is greater integration and the creation of a truly global, sustainable patent system. In the best of worlds, according to Ms Brimelow such a global patent system would start out with an international infrastructure operating under a harmonized body of laws, regulations and practices. This is the mantra of the representatives of industrialised countries. No other stance is politically correct. Yet at the moment, international normative initiatives are all more or less at a standstill, as delegations "act" globally, but think locally. The EU Patent is, Brimelow fears, another example of the gap between rhetoric and reality besides SPLT. To the untrained eye, much of what has been achieved by EU member States on December 04, 2009, looks like window-dressing: translation arrangements are taken out of the Draft Regulation and put into a side Agreement which will still require unanimous approval, and without which the main Regulation on the EU patent will not be able to enter into force.
• Work-sharing: Experiments and objectives, PCT reform, the EPO work-sharing scheme, and IP5: Given the failure of the normative harmonization process at the world level, pragmatism is prevailing. Global backlogs have become a driver for change, and they have created a real impetus world-wide for reducing unnecessary duplication of work. Patent offices are now striving for effective international operational co-operation. With patent offices world-wide making use of information technology and databases, and increasingly working together to create technical compatibility between systems, the case for a nationally bound, independent assessment of novelty and inventive step has been considerably weakened. Does this mean that there is room for effective, quality-enhancing collaboration between patent offices without substantive patent law harmonization? In Ms Brimelow's view, the answer is undoubtedly yes. However, Ms Brimelow admits she is not entirely sure that the PPH is the way of the future. So far, PPH pilot programs have had a disappointing resonance with EPO users. Ms Brimelow announced that beginning on January 01, 2011, the EPO work sharing scheme under Art. 124 EPC will enter into force. An applicant claiming priority from a previous application will then be required to file a copy of any search carried out by the OFF either upon filing a European patent application or upon entry into the European phase in the case of a PCT application, or as soon as they become available to the applicant. The EPO is of the opinion that if work-sharing is to be done properly and efficiently, it is of cardinal importance that the appropriate infrastructure and environment be established. In October 2008, the Heads of the EPO, JPO, USPTO, KIPO and SIPO met in Korea to create a new vehicle for pursuing international cooperation in this regard: the "IP5". Ten Foundation Projects were created to underpin the cooperation. In Ms Brimelow's view, the "IP5" is potentially as big as the conclusion of the EPC in terms of its significance for the patent world. If the IP5 offices persevere, we will be building the foundation of an international system, enabling efficient work-sharing which will deliver long term and sustainable benefits for all. And this, even without any substantive harmonization breakthroughs.
• Doing things in the right order: Ms Brimelow argues that, in the international arena, every improvement of the legal or administrative patent infrastructure has spawned a wave of increased patenting activity. Multilateral solutions don't just provide the means to cope with increased demands, they fuel these very demands. In other words, "If you build it, they will come". In this regard, she thinks it might be all the better if substantive patent law harmonization - perhaps rendered more attractive by work-sharing arrangements which would maximize the efficiency gains that harmonization might bring - occurred after the infrastructure for dealing with another potential growth spurt had been set up, rather than before.

For comparisation, the elected incoming President EPO, Mr Benoît Battistelli, has given answers to a number of questions posed by epi in 2009.