The news that USPTO Director David Kappos has launched a blog in which he will speak directly to all the office's users and everyone else who has an interest in its functioning is not a huge development in the great scheme of things. But it has got me thinking. Specifically, I can't help comparing the transparency of the process through which Kappos was appointed, to the smoke and mirrors, behind-closed-doors shenanigans that we are currently going through as the search to find the next president of the EPO continues.

When Kappos was finally nominated to be the Obama Administration's first USPTO Director, we were told precisely why the decision had been taken. On top of that, Kappos had to appear before the US Senate Judiciary Committee to be confirmed. He was scrutinised and then he was endorsed. Even if they do not agree with the appointment, everyone understands exactly why he got the job - the US President, the US Commerce Secretary and the US Senate think he can do it; and they have explained to us why they think this.

Over in Europe, meanwhile, we know that there are four candidates for the EPO president's job and we know that so far it has not been possible to make a selection. But we don't know why this is. Neither do we know why Susanne Sivborg seems to be a far less attractive candidate than the three men who are up for the job. So what we are left with is a very nasty suspicion that the person who does finally emerge as the successful candidate will do so as the result of a lot of behind the scenes politicking. One candidate may not get the job because he is not a citizen of a member state of the EU, another one may lose out because he is French and, some believe, the French have recently had the presidency and so cannot have it again for a while.

In short, what everyone in Europe knows is that being the best person for the job is not the main criteria for choosing the EPO president, there are other far more important considerations. Therefore, if we do end up with the best person, it will be entirely by coincidence. And on top of that, there is absolutely no scrutiny of the appointment and the new president does not have to answer in public for the job he or she is doing - it is the Administrative Council that does the overseeing and that operates in private to all intents and purposes.

Of course, the EPO is a very different beast to the USPTO and it cannot operate in exactly the same way. But that is no excuse for the lack of transparency there is when making such a hugely important choice as who should be the next president. Neither does it mean that oversight of the job the president is doing in running the office has to take place behind closed doors. Nor does it mean there cannot be regular and meaningful public scrutiny of both the president and the Administrative Council. Come to think of it, there is nothing stopping the president and/or the head of the Administrative Council having a blog that actually talks about things that matter on a regular basis and invites comments on them.

As things stand, it looks to this observer that in contrast to the USPTO, the EPO is run for the benefit of a relatively small number of insiders who like things just the way they are and often have very specific agendas. And that really is not good enough. The EPO has a significant role to play in the development of European commerce and industry; if we do get a Community patent and a single European patent court, it will become even more important. The office is also a central player in vital international discussions about issues such as patent quality and the backlog. Can it really play its full part in all of these things if it continues to be run in the way that it is? At some stage, surely, its authority is going to become seriously diminshed.

When you think about the byzantine way in which the EPO is run on both an operational and strategic basis, it puts the work that the day to day staff at the office do in a hugely positive light. Despite all the problems, the EPO does seem to be regarded as the world's leading issuing authority. In other words, it does its job better than all other offices. I may be a critic of the way in which some EPO staff behave and frame arguments at times - and I will continue to be so if necessary - but in the end I can only take my hat off to them. They do one heck of a job. Just think what the EPO could be with their dedication and a transparent Administrative Council with only the good of the office on its mind.   

Sectors

IP politics, Patents

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