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Alison Brimelow has been speaking about mutual recognition again. Following on from the exclusive interview she gave to IAM in May, when she first raised the issue, the President of the EPO has now spoken to the BBC about the same subject.
“I note that people I talk to in the business of seeking patents are increasingly happy to speculate on whether the time has come for mutual recognition, a patent examined in one major institution should be recognised by another,” she told the BBC. This is pretty much what she said to me as well, just as she also recognised the problems mutual recognition raises. “But it is nonetheless very difficult, very sensitive and - because patent offices are good at finding reasons for saying "no" - what is difficult about it is more readily seen than what might be workable."
Nevertheless, the backlog issues that all major patent offices are now dealing with mean that policy-makers may have to find solutions to these difficulties, Brimelow says. “For the first time in my involvement in intellectual property since the beginning of the 90s I hear people prepared to talk about this and I think this is a new development and one we have to think about. It needs courageous decision-making.”
Entirely coincidentally, the Digital Majority website reports on talks between Charlie McCreevy, the European Commissioner responsible for the Internal Market, and Carlos Gutierrez, the US Secretary of Commerce, on increasing efforts to beef up efforts to harmonise international patent law, with a view to making “progress towards an efficient and effective global patent system, especially within the so-called Group B+” (the B+ countries generally being found in the developed world).
Essentially, these talks are about harmonising substantive patent law, including areas such as priority of invention, the grace period, the definition of prior art and loss of right provisions. However, I wonder whether Brimelow – who always considers her words very carefully – is hinting that other things may now be on the agenda. It is interesting that when she spoke to me about this, and also in the BBC interview, she talked about users of the patent system raising the issue of mutual recognition. In that way, any talks on the subject can be seen as being responsive and not as policy-makers going out on a limb.
In the past, mutual recognition has always been opposed by the Europeans because, among other things, they consider that standards of patentability in the US, for one, are not as high in many areas as they are in Europe. And while there are clearly major hurdles in the way of progress on this front, recent developments in the US courts have tended to raise the crossbar as far as applicants at the USPTO are concerned. And, who knows, after the In re Bilski case is finally resolved at either the CAFC or the Supreme Court, Europe and the US may even be a little closer with regard to the controversial areas of business methods and software patents.
Finally, it is worth pointing out – especially in light of the story we ran on here a couple of days ago – that WIPO seems to have no role at all in these harmonisation talks.
I think it is wise to wait for Bilski to clear things up here. As a citizen of the U.S. I am embarrassed the way BMPs have turned some of our patent system on its head. They have two detrimental effects which provide all the policy reasons necessary abolish them entirely. First, they often discourage smaller companies from entering markets. It has become markedly easier since State Street to utilize an obvious process and method and still find you are infringing on a patent. Second, the reverse is also true. BMPs encourage patent trolls. Just look at the case of Data Treasury. This two man company applied for a BMP on the process of electronically scanning checks immediately after State Street. Since Congress passed a law encouraging and allowing banks to begin electronically processing checks DataTreasury has been suing all of the largest banks left and right. BMPs encourage just this sort of behavior, and there are many companies out there using BMPs whose only business is suing large corporations and entire industries. It is embarrassing, and obviously inefficient. These are only a sample of the policy reasons the rid the U.S. of BMPs. The legal reasons are also numerous, and I hope Bilski ultimately sees these reasons and seriously curbs BMPs. Companies like DataTreasury are a drain on our economy, and should certainly not be encouraged by the patent system. It is wise of the Europe to avoid welcoming companies like this into your legal system with open armsMar Jacobs, Invent IP on 19 Jun 2008
BMPs and Software patents goes together. Some people say that the border line between those 2 types of patents is fuzzy, and the disctinction might only be made if there is a computer involved. They have both broad claims and broad scope.Benjamin Henrion, FFII on 24 Jun 2008