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 conversation.
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.