INTERVIEW WITH BENOIT BATISTELLI, PRESIDENT, EUROPEAN PATENT OFFICE (EPO) : "WE WILL SEE THE FIRST UNITARY PATENT IN LATE 2015 OR EARLY 2016".
What do you see as the strengths and weaknesses of the European Union and more specifically of European companies?
The year 2013 was a good one for patents, which is good news for the European economy. We had a quantitative increase resulting from progress by countries outside Europe, especially in Asia, and stability in Europe at a level of 35%. This share can sometimes cause concern, but on the contrary, it should be seen as a signal of Europe's attractiveness for its innovative capacities, sought by major global enterprises. European companies are very active in the top ten patent application sectors. The only sector where they are lagging is information technology, which is no surprise.
You note that work to prepare the unitary patent is advancing well at the EPO and technically things are ready. What are you waiting for to issue the first single patents?
The roll-out of the unitary patent is legally correlated to establishment of the single court that will handle patent disputes, being set up under an international agreement that participating member states need to ratify. Three have already signed (France, Malta and Sweden) but 13 are required (including France, Germany and the UK). The process is expected to be completed in 2015. Depending on the state, it can take a fair amount of time. I estimate that it will take until mid-2015. Then we will need another six months after the completion of ratification, which is why I think we will see the first unitary patent in late 2015 or early 2016. In the United Kingdom, the process is under way and could be completed by mid-2015.
The group preparing the start-up of this court system has done a lot of work on rules of procedure, the IT network for calls for candidacies for appointing judges (1,300 candidates for 60 positions).
In early February, 38 European organisations filed an action with the EPO for annulment of a patent on pepper plants resistant to white fly, awarded to Syngenta last May. They find that this authorisation runs counter to the European Patent Convention and the European Parliament resolution of May 2012 calling on the EPO not to issue patents on traditional selection processes. The EPO issued a similar patent, on 20 February, for a variety of watermelon that has also sparked criticism. Wasn't there supposed to be a suspension of such patents pending an opinion from the Grand Chamber on wrinkled tomatoes?
On these questions, we respect the biotechnology directive and the interpretation of that text by the EU Court of Justice. Parliament's resolution is not part of substantive law, but on the other hand the EP can propose to amend the directive. The Grand Chamber is hearing similar challenges concerning interpretation of the directive and of Court of Justice case law and is expected to issue its opinion in 2014. Depending on how it rules, the EPO will adapt its practice or not. Meanwhile, we will continue our practice. If the patents you mention are challenged they could possibly be invalidated.
The EPO confirmed in late January the validation of the patent on emergency calls, held by IPCOM and challenged by Apple among others. This confirmation reinforces IPCOM, which has brought legal actions in the EU against certain mobile phone manufacturers that allegedly use this function without paying licensing fees. Some are critical of the EPO for facilitating the development of patent trolls and certain companies are concerned that the unitary patent will heighten this danger. What is your reaction?
These concerns are exaggerated. The troll phenomenon is typically American and is due to the particularities of the American system, which is very different from our European system. In the United States, the side that loses a lawsuit is not subjected to financial constraints, unlike what happens in the EU. We have other safety nets that prevent the proliferation of such disputes and of the activity of such trolls or bodies that hold patents and are considered trolls by their opponents. These concerns are limited to a few large American groups.