I was discussing the merits of organisational and cultural
styles of IP offices with a former EPO employee at Managing
IP’s Patent Forum last week (they’re
a rare breed. The EPO’s generous compensation
package and the opportunity to work in a multi-national,
multi-lingual environment is such a draw that most people enter
the Office on a one-way ticket).
We talked about how the approaches of the European and US
offices reflect trans-Atlantic cultural and political
differences. Europe’s EPO has a
career-for-life-style civil service. The USPTO relies more on
the revolving door and administration appointments.
But does it
make a difference? The EPO’s examiners are
generally regarded as providing the highest-quality examination
service. There’s no certainty that
it’s a causal relationship, but it would be
surprising if the longevity and experience of its examiners
didn’t give them the edge, particularly when it
comes to having the confidence to reject iffy applications
filed by practised patent attorneys who understand the
system’s weak spots.
But does the permanence of the EPO’s staff make
them less open to new ways of thinking or doing? The phrase
"insular and inward-looking" certainly cropped up in our
So would the EPO’s senior management benefit
from enforced spells outside the organisation, even if only in
other public sector bodies? Would mandatory stints in private
practice or as in-house attorneys make every examiner more
mindful of the commercial realties faced by IP owners and their
advisers? The Office already runs a programme to embed some of its examiners
in private practice on a temporary basis – but
should expanding the scheme be made a higher priority?
Across the Atlantic, the USPTO has more trouble recruiting
and holding onto examiners than its European counterpart.
A sizeable number of US examiners gather valuable experience
of the patent examination system early in their careers before
shifting to the more lucrative private sector. Does that make
its examiners more likely to keep their eyes on their exit
strategies and the Office more susceptible to regulatory capture? Does the practice of
political appointments by the presidency politicise the Office
and subject it to short-term thinking?
There are no easy answers – as Benoit Battistelli
(locked into his own low-intensity battle with the
EPO’s examiners) and Michelle Lee (in place of the
yet-to-be-appointed director of the USPTO) would doubtlessly
agree. But let us know yours.