Why Europe is not trolls' natural habitat
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Why Europe is not trolls' natural habitat

Benoît Battistelli, President of the European Patent Office (EPO), updated AIPLA attendees on developments in Europe in the luncheon speech yesterday. He especially highlighted the cooperation between the EPO and the United States

benoitbastitelli2.jpg

He noted that applicants in this country have ranked the largest in filings at the EPO since it was set up, with a 25% share in 2013. He outlined the close cooperation between the EPO and the USPTO for various projects including the Cooperative Patent Classification (CPC), the Global Dossier, the Patent Prosecution Highway and a study on the economic impact of patents.

He expanded on this theme in an interview with the AIPLA Daily Report.

“We have very good relations with the USPTO and I think these relations have improved and gained in density recently,” he said. “I think we have reached a stage where we are able to launch specific projects together, and implement them successfully. The best example I can give of that is the CPC, which is clearly a valuable joint venture. It has been developed in less than two years and then implemented quickly. It is becoming much more important than many people expected. More and more offices, including medium-sized offices, have clearly indicated their willingness to adopt this CPC.”

He believes the United States and European patent systems are moving closer to each other.

“I have the feeling that through different recent decisions taken in the US at different levels – court decisions, administration decisions, legislative decisions and so on – the two systems are getting closer in their balance and in their practice. They are still quite different, of course, but we are getting closer. This is good for both. So we are now concentrating on harmonization at different levels – technical, procedural, administrative, substantive and so on.”

The IP5 offices have made progress in harmonizing patent procedures. Of the 2.2 procedures at the IP5 offices, about 300,000 are cross-filed to two or more offices. The IP5 offices decided in June this year to move forward within the Patent Harmonization Expert Panel in the areas of unity of invention, citation of prior art and written description/sufficiency of disclosure.

One way Europe is not like the United States, however, is there are not the same concerns about patent trolls. Some fear this could change with the upcoming implementation of the Unitary Patent and Unified Patent Court (see yesterday’s newsletter, page 7, for a guide to these).

Battistelli dismisses the idea of troll activity increasing in Europe. “Some say that it will facilitate the development of patent trolls in Europe. I don’t think this is true because this court will apply very similar rules to the current national courts,” he says. He points out that the UPC has no punitive damages, no automatic preliminary injunction, litigation costs have to be borne by the losing party, and there are specialized patent judges and no juries.

“The patent troll has not developed in Europe as it has in the US and there is no reason in the future that it will develop more than it has currently,” he said.

Rather, Battistelli said the biggest concern raised around the Unitary Patent and UPC is the great power it will yield.

“The concerns are, ‘I am going to risk my patent with one decision taken by one court.’ Yes, this is true, but if you want to have a decision valid in 25 countries, you cannot escape that. This is the essence of it.”

more from across site and ros bottom lb

More from across our site

Mark Lemley explains how his firm helped secure a precedential victory in a design patent case involving spare automobile parts
A historic treaty on traditional knowledge and genetic resources, which could have ramifications for patent applicants and their representatives, has been agreed
Ahead of the first anniversary of the UPC, practitioners share how the court has kept them busy and look ahead to emerging trends
Three counsel who joined Boies Schiller explain why the firm will help them advise both plaintiffs and defendants
The Grand Board said the applied-for mark would ‘trivialise’ one of the deadliest pandemics in history
Tim Chen Saulsbury explains why single-craft artisans inspire him and how, even at home, he’s never too far from another IP lawyer
The firm also plans to build an entertainment practice group and up its IP and antitrust offerings with a focus on foreign clients
An intimate understanding of a client’s sector is essential to winning new business, a survey of over 28,000 corporate counsel reveals
Counsel say a Federal Circuit ruling on the obviousness test for design patents may increase the time IP owners spend defending their rights
With INTA Annual Meeting over for another year, here are a few things Managing IP learned after attending IP’s biggest party
Gift this article