EPO ready for the first Unitary Patent as soon as the ratification requirements are met

Grant Philpott

Grant Philpott is CEO of the Information and Communication Technology technical are at the European Patent Office (EPO). We sat down for an on-the-record interview in advance of the EPO’s two-day seminar on patenting information and communication technologies in Europe, which will take place next week in Palo Alto, California. In part 1 of our conversation we discussed the EPO’s focus on what the software does; the technical solution. We also discussed the Internet of Things.

In part 2 of our conversation (below) we pick up where we left off, but then quickly shift gears and discuss the creation of the Unitary Patent, the impact Brexit may have on the Unitary Patent, and what the term “patent quality” means to the EPO.

QUINN: I think that makes a lot of sense because it seems as if particularly in this space that Europe is becoming the center of gravity. And that is in part, I think, because of the way that you handle these applications and in a big part because the way the United States is handling these applications. So maybe the question here would be whether you are seeing a continued increase in the number of these types of applications year over year and do you expect to continue to see that same trend moving forward?

PHILPOT: We are now starting to produce our own more detailed metrics on ICT and CII applications. We have developed internal systems and have been running these in a number of classical technologies, such as the automotive, aircraft and health care areas, to monitor the percentage of applications that have CII content. We’ve seen quite a rise in this over the last five years, and we believe that it is reasonable to think that by 2020, over 50% of all applications at the EPO will exhibit some form of CII content. So this really is a major finding which adds weight to the efforts that we’re making in this area.

Our metrics results are further confirmed by the discussions we have with our applicants, the directions that we observe industry taking generally, and the way that we know technology is developing. Here again, you need to have some understanding of the concepts of the Internet of Things and Industry 4.0. Hype aside – the fact that these terms are catching on so much supports the view that there’s a lot of impetus here. The EPO is certainly alert to this, is monitoring developments very carefully, and in the second half of 2017 will publish its first landscaping study in this area.

QUINN: Shifting gears a little, I have what may seem like a silly question from your European perspective, but from an American perspective there seems to be a lot of uncertainty regarding the unitary patent and I was wondering if you could tell us anything about that. And what if any effect this has on the EPO.

PHILPOT: The creation of the Unitary Patent has been an aim of the EU for over 40 years. It is not a reaction to changes in the field of ICT, but a much bigger project that has been around for a long time. But there are some significant advantageous aspects of the Unitary Patent for the ICT industry. We are looking at a European patent that will, in one single step, give you unified protection in up to 26 EU member states – the current number of EU states participating in the Unitary Patent – and provide a simplified post-grant administration procedure for patent owners, omitting the individual national validation procedures in each state as is the case today. If we then link that with the issues already mentioned around cloud computing and distributed processing, this is precisely the sort of development that I would expect the ICT industry to be welcoming, because in a single procedure the UP scheme will give you protection with a high level of legal certainty and a common second instance across a wide territorial region. A second benefit which we can hope to see coming out of the Unitary Patent is in the area of case law. As I have mentioned, we already have a very useful and relatively consistent body of case law in Europe, from the EPO’s Boards of Appeal and also from a number of important national courts of the Contracting States of the EPC. Under the Unitary Patent Court, European case law can be expected to become even more consistent as aspects such as common training for judges exert their influence. In time, and with fast-moving technologies that may be a short time, I am sure that UPC case law will further reinforce our harmonized approach to CII, strengthening procedural and legal certainty.

QUINN: Now what effect is all of this political turmoil that we see going on in the UK? What affect, if any, does that have on the unitary patent moving forward?

PHILPOT: I can understand that from a US perspective, these negotiations can sometimes be hard to follow. However one has to realise that through these projects – the UPP and the UPC – an applicant will get a single patent covering potentially 26 different European states and be able to litigate in one unified court system applying a uniform set of rules, meaning a transfer of national sovereign rights to a regional entity. Imagine the same situation in North America if governments from Canada to Panama had to agree on something similar.

Despite Brexit, the UK authorities have constantly reaffirmed their commitment to maintaining their participation in the UPC, and they are about to finalise the UK’s ratification of the UPC agreement. It is a clear testimony to the high value of these projects and to their strategic importance that the UK wants to be a part of them. Of course, as the UPP and UPC will sharply streamline procedures, cut red tape and dramatically decrease costs, you can also imagine that they are likely to collide with some private interests profiting from the complexity of the current system. This can sometimes generate resistance, but an overwhelming majority of users strongly support the UPP and UPC.

QUINN: Okay. So when people are going to file this Unitary Patent will they be filing it in the EPO as per normal?

PHILPOT: One of the great aspects of the Unitary Patent is that it follows the normal EPO procedure up to grant. And indeed, the search and the examination processes will be precisely the same as those you’ve been used to with the current EP and PCT procedures, and will be performed by the same examiners. One of the strengths of the EPO is that we allocate examiners to applications according to their technical expertise, regardless of the filing route through which applications arrive. It will only be at the end of the procedure, when the application proceeds to grant, that applicants will have to indicate if they want to have a single Unitary Patent instead of a bundle of patents for individual member states, as is the case for the European patent. So it’s extremely straightforward, cost effective, and much simpler to administer post grant than the current European patent. My impression is that many U.S. applicants already understand the logic and advantages of this very well, sometimes even a little better than European applicants, as the geographical size and the GDP of the market covered by the Unitary Patent is very similar to that of the U.S. patent.

QUINN: It makes all the sense in the world to have a single European patent and I think that the companies in the U.S. are looking forward to this change. And I think certainly companies all around the world would be as well. I just think every so often when there’s been some political unease in the U.K. some folks over here don’t really understand or follow U.K. politics and maybe are not as well versed in the actual treaty language to know what the milestones are, then there are questions about whether this is really going to happen. Because sometimes you read in the media, and the media loves to make things seem more dramatic than they really are and the headlines are about things falling apart when in fact they’re not necessarily really falling apart. So it’s good to hear that the Unitary Patent seems to be continuing and it’s all systems go and there’s no reason to suspect that it’s not going to happen as planned.

PHILPOT: Absolutely. That’s the clear message from the EPO – we are fully prepared, equipped and staffed to deliver the first Unitary Patent as soon as the ratification requirements are met. Applicants should perhaps see past the rhetoric and think more concretely about their own approach and strategies in using the Unitary Patent, because when it becomes available there will be some choices to be made about how to use it. I think first movers might have some advantages here. So yes, from me the message is very positive and optimistic, and being British myself I can assure you that I follow developments very carefully!

QUINN: That’s great. So to end the interview let me ask you this: Is there anything that you wished I had asked you that you would like to get out to the audience that I haven’t asked you yet? And if not then maybe just some parting thoughts, you know, maybe a summary of what you would like to leave people with thinking about?

PHILPOT: A topic we haven’t really touched on, and which comes up pretty frequently at conferences and in discussions, is quality. Here I just want to say that over the last five years the EPO has completely upgraded and modernized its quality processes. Our entire patent grant process is now fully ISO 9001 certified, so our internal systems are approved under the ISO system. As a result, the quality feedback cycle at the EPO is very rigorous. We have put in place a very reliable and logical set of metrics and indicators to measure quality. Quality input is collected from various sources – a dedicated internal audit unit, quality metrics from each examination division, and applicant feedback from user satisfaction surveys and a complaints procedure. We welcome feedback of any type and nature, for instance we provide the possibility for people to register comments on our services by email. All of these quality inputs are brought together once a year, and generate an aggregated quality report for each operational area. We then go through that report with our quality department. I subsequently receive quality objectives from my Vice-President for the ICT area and these are cascaded down to my directors, suitably tailored to their technical areas. Those objectives are further adapted to individuals and communicated to examiners through team managers. That way, each examiner in the EPO is given an individual, relevant quality objective to ensure that we all maintain and indeed improve on the EPO’s quality year on year.

In fact we have just received the preliminary results of this year’s user-satisfaction survey for the ICT area, and I am quite proud to mention here that whilst there are of course lessons to be learned from the results, they clearly confirm the effectiveness of the measures that we’ve taken over the preceding three years. There were 750 interviews conducted with applicants, so it is quite a representative survey. I therefore take these results as confirmation that we’re going in the right direction, and my message to the U.S. ICT industry is that the EPO’s quality system can be relied upon to effectively monitor our quality and to continuously trigger and reinforce measures which provide you with the best possible service.

QUINN: I’m glad you brought up patent quality because that is a topic that I usually try and stay away from in interviews simply because here in America I think patent quality is political code for how do we reject you faster and more authoritatively. But it doesn’t seem to have the same kind of meaning in the EPO. It seems the meaning the EPO attributes to quality is a much more robust and common meaning. I guess in America a lot of times patent quality becomes like fingers on the chalkboard for patent applicants and patent owners because it feels like there’s this hidden agenda. At least to me, I won’t speak broadly for the community, although I think there are some others that share that view. So the one question that I would have to follow up on is this: In the EPO when you’re looking at patent quality are you both looking at cases where the examiners have allowed patents and cases where examiners have not allowed patents as well to determine whether the quality is where you want it?

PHILPOT: Indeed, we look carefully at both. Perhaps first and foremost I should mention that our three-examiner divisions are responsible for signing off each and every final action, regardless of whether it is a grant or refusal. We also conduct audits on refusals, and, as for grants, look carefully at the issues behind cases where the auditors identify divergent practice. But perhaps the best way of answering this grant or refusal issue is to say that we primarily aim to have examiners who make procedurally correct and consistent decisions based on clear, established criteria, and it is this which ensures the quality of products, be they grants or refusals. As such, the foundations of quality are built in several areas. Ensuring that we recruit the highest caliber of examination staff is absolutely central, as is ensuring that they receive appropriate training both at the outset and continuously throughout their career. This is then reinforced by the constant monitoring of our quality system to ensure that examiners adhere to the EPC, Guidelines and other instructions for examination across the whole operational area. So maintaining quality is a multi-faceted issue, a very complex process reaching into every part of the EPO operational and support structure. And we are the only large patent office in the world where the entire patent granting process is ISO 9001 certified. Whilst that by itself doesn’t assure quality, it is a badge of competence to say that we have the systems in place which can provide very high quality if managed and applied correctly. In fact, for the first time this year we’ve published a comprehensive report, which focuses specifically on the quality measures we’ve put in place. Quality is obviously a defining feature of EPO patents so it’s important that we provide our users with a clear understanding of what exactly this entails, how we safeguard it, and the ways in which we’re improving quality even further.

QUINN: Well, Grant, thank you so much for this interview. It was very informative and I really appreciate you taking the time.