Insight

Brimelow faces challenges, but comes to office at a promising time

The new president of the to wait three years after a stating that the “technical effect implemented inventions should compromise deal was agreed approach” which the judge be interpreted. It is untenable to will have her work cut out which allowed Pompidou – a endorsed in Macrossan was “not have a situation in which candidate who the French consistent with a good-faith different parts of what is as she tackles a number government had insisted should interpretation” of the convention. supposed to be a single market of high-profile issues. be given the job – to serve half Putting the rights and wrongs view the same issue in If Alison Brimelow plays the president’s six-year term. of the legal arguments to one completely different ways. her cards right, however, That Pompidou, a clever side, such a clash is very bad Brimelow has a major role to she could find allies at politician who was always news for patent owners across play in helping to sort this interested in the big picture, Europe. The fact that the board serious problem out. the very top of Europe’s became the most high-profile could have a view of the political ladder president the EPO has ever had European Patent Convention so Examiners in revolt probably made those three years diametrically opposed to the one Another major challenge she When Alison Brimelow sat down hard ones for Brimelow. But she held by a hugely experienced faces is close to home. Just at her desk on the first day of did not complain. Instead, she and distinguished English judge before the Pompidou presidency her new job on 2nd July, she remained very firmly in the demonstrates the fault lines that came to an end, an internal EPO would have seen quite a pile of background, working on issues exist in Europe over the crucial report was leaked which papers in the in-tray. Not only did such as the EPO Scenarios subject of the patentability of described how staff at the office the incoming president of the project and preparing for her computer implemented have lost almost all trust in both European Patent Office have to term. If she had views on the inventions and software. And the the office of the president and deal with issues such as how to way Pompidou was handling his way the European system is the EPO’s Administrative manage the growing rift between role, or on developments at the currently structured – with Council. According to the report, the English courts and at least EPO in general, she kept them European patents granted at the which, the preamble explains, one EPO board of appeal with very firmly in the private domain. EPO in Munich, but enforced in, regard to the patentability of and interpreted by, national computer implemented The EPO versus the UK courts courts – means there is always inventions, but she was also Now she is at the EPO, however, plenty of scope for such faced with what seemed to be Brimelow has a lot of work to disagreements; especially in a set of employees in open do. In June, for example, a story contentious areas such as rebellion. Throw in the ongoing broke on the IPjur blog software. debate over patent quality, as (www.ipjur.com) about an attack In June, the EPO held a day- well as Europe’s continued made by one of the EPO’s long conference in Brussels inability to devise a cost- boards of appeal on Lord Justice designed to bring the many effective, transnational and Jacob, the UK’s most senior sides in the fractious debate broadly predictable patent patent judge and a man whose about software patents in system, and Brimelow could decisions are widely respected Europe together to discuss have been forgiven for wanting across Europe. potential ways forward. The to put through a call to her In its decision on case T good news was that it was all predecessor Alain Pompidou 0154/04 – 3.5.01, concerning a quite civilised; the bad news to see if he wanted to take “Method of estimating product was that nothing much his old job back. distribution”, the board – chaired happened beyond vague But the former head of the by Stefan Steinbrenner – agreement that there was a UK Patent Office and career seemed to question Lord Justice need for more talking. Under Alison Brimelow diplomat is made of sterner Jacob’s understanding of the Pompidou, the EPO was a strong The new EPO President stuff than that. She has had to term “invention”. Furthermore, supporter of the failed CII be. Although she attracted most it stated that the judgment he Directive but, despite some Challenges votes in elections during 2003 delivered at the Court of Appeal rumours, the chances of that to find a new EPO president to in London in Macrossan, a high- being resurrected seem remote to face, succeed the German Ingo Kober, profile case relating to the to say the least. However, Brimelow was unable to take patentability of software, was something will need to be done but friends over when Kober stood down in “irreconcilable with the European at some stage to clarify how the 2004. Instead, she was forced Patent Convention”; this after law as it relates to computer to make

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was “submitted by the staff office – even in some of the defiance of staff protests. sometimes heroic attempts he representatives via the President most senior positions – disagree Whether disgruntled staff struggled to get Europe’s really of the European Patent Office”, with much of what was said. The members are using the issue of big players to take the subject there is major conflict between conflict that does exist could quality as a weapon with which of patents seriously. All too Administrative Council members’ well have the potential to to beat the management that often they preferred to look at roles as guardians of the EPO compromise quality and has altered working conditions is subjects such as the Community and the fact that two-thirds of efficiency at the EPO, and it is a moot point, but one that Patent, the CII Directive and, them hold senior positions at important that these issues are needs to be properly explored. latterly, the European Patent national patent offices. properly – and openly – So far, Brimelow has not Litigation Agreement (EPLA), as The report reveals a discussed. One of Brimelow’s indicated that she will revisit technical issues, best left to the widespread feeling among staff roles over the coming months either the pension or the experts. Discussing farm in Munich is that it is in the will be to reassure users of the appraisal issues, so it will be subsidies and fishing quotas interests of council members EPO that quality remains the interesting to see how her was deemed much more that the EPO is not as efficient over-riding goal of everyone relationship with such key important. as it could be, because such connected to the office, and that players as SUEPO (the Staff Because the likes of inefficiencies drive applicants to nothing is being done that will Union of the European Patent Jacques Chirac, Gerhard register patents at the national see it being compromised. Office) develops over the Schroeder and Tony Blair were level. Furthermore, the fact that coming months. never persuaded that patents national offices retain 50% of all Questions of quality had a vital part to play in the European patent renewal fees Brimelow, it seems, understands Opportunity knocks future development of Europe’s means that they are more this. In her first interviews after But while Brimelow undoubtedly economy, there was never much interested in the number of assuming the presidency, she faces a number of important pressure from the very top for patents granted by the EPO and has been very keen to stress challenges, she does so against progress in any of the talks far less concerned about the the importance of patent quality the backdrop of some very surrounding the many initiatives quality of what is being granted. and has also said that she is welcome developments on the designed to make Europe’s But that’s not all. There is, worried that there may be too wider political stage. Although patent system less fragmented. says the report, a negative many patents being granted. Pompidou himself was a Instead, the endless feeling about EPO staff from If it is the case, as EPO staff consummate politician, despite negotiations involved a number council delegates: “Particularly assert, that the Administrative in the last two meetings of the Council is more worried about Council, members of certain numbers than quality, there is delegations have made certainly the potential for a comments implying, or even clash between the president and Grants and applications up at the EPO explicitly stating, that they the council some time over the consider EPO staff to be, among next three years. Brimelow may other things, unprofessional, need all her diplomatic inefficient, overpaid and experience to make sure that According to the EPO’s 2006 However, they fell significantly malingering … It has not gone any disagreements do not blow annual report, both the in the Netherlands (-472). unnoticed by these staff that up in the open. applications the office receives Among non-European certain of these comments Something else the new and the grants that it makes countries, growth was marked even appeared to have the president has been keen to are on the rise. While, at in applications from the US implicit support of the Chairman mention since she took over is 207,300, there was a 5% rise (34,800 filings, +2,060) and of the Council.” what she describes as the world- in applications, the number of Canada (1,950, +170). That there is tension class job being done by EPO grants, at 62,780, increased Significant increases were also between the EPO and many staff. Clearly, there is a morale by 17.9%. This at a time when recorded from Japan (22,140, national European patent offices problem among examiners – the the percentage of grants made +680), Korea (4,595, +742) will come as no surprise to leaked report followed a series by the USPTO, for example, and China (720, +181). anyone who has spent time in of one-day strikes last year has fallen significantly – from The top 10 company Munich or other EPO offices. which, it was claimed, were all over 70% of applications just applications were as follows: One constant theme in many about perceptions that quality five years ago to 54% now. Philips 4,425 conversations with staff was being compromised in the Among European countries, Samsung 2,355 members is how the national name of management reform. Germany once again topped the Siemens 2,319 offices, through the However, such claims do not tell applications table, with 24,900 Matsushita 1,529 Administrative Council, are more the full story. Adjustments to the (18.4% of the total), followed by BASF 1,459 focused on their own interests way in which pension (8,010, 5.9%), and the LG Electronics 1,214 than the interests of the EPO. contributions are made mean Netherlands (7,400, 5%). In Robert Bosch 1,093 This probably explains the that staff now have to pay more comparison to 2005, filings Sony 1,088 negativity towards the Council in from their salaries, while rose in most countries, Nokia 882 the report; it is unlikely that Pompidou also forced through especially in Germany (+1,078). General Electric 768 many who work full-time at the new appraisal systems in

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of those with a vested interest substantially less applications Skills (DIUS) – within which the arguments. And, if the in the status quo, which earned filed in French because such UKIPO (the former UK Patent arguments are strong enough, them a very good living, and so filing would no longer be Office) now operates. Also, and there is much more chance than gave them little incentive to compulsory. This, they say, for the first time ever, the UK ever before of things happening push for change. would create significant got a government minister with as a result. However, there are signs uncertainty for French IP in his job title; this when Lord For a president of the EPO that this is no longer the case. companies. What they don’t Triesman was appointed facing more than a few local Over the last few months, the say is that it could also mean Parliamentary Under Secretary difficulties, having potential political guard has changed in significantly less translation of State for Intellectual Property allies at the very top of the Europe. The German Chancellor work for them; which is and Quality. European tree is a gift. If Angela Merkel has been joined presumably why MEDEF, which Brimelow can use her skills as at the top table by a new French represents so many of their Friends in high places a diplomat to harness their president, Nicolas Sarkozy, clients, is such a strong While it would be overstating support, there is every chance and Gordon Brown, the man supporter. things to claim that IP is now at she could have a remarkably who has succeeded Tony Blair Under Chirac the CNCPI was the top of the agenda in Europe, successful three years. The in- as UK prime minister. All three assured of a sympathetic it does seem clear that, tray may well be full at the have given reason to believe hearing. With Sarkozy now in probably for the first time ever, moment, but there is no reason that they have a much more charge, this is not the case. In the leaders of the countries why it cannot be tackled. Alain developed view of intellectual the run-up to the presidential which are commonly regarded as Pompidou would not be human property, and patents, than their elections in May, Sarkozy stated the three main movers inside if he did not cast a few envious predecessors. that he wanted France to ratify the EU are people who have a glances in the direction of his In April, for example, Merkel the London Agreement, working knowledge of IP issues successor. addressed an EPO-organised something that would see it and an understanding of their conference in Munich. In her enter into force. In a newspaper potential importance. The speech, the German leader – interview given in July, two significance of this should not who holds a doctorate in physics government ministers – Valérie be understated. and worked as a before Pécresse, who is responsible for For progress to be made in entering politics – stressed the higher education and research, improving Europe’s patent importance of the EPLA, as well and Jean-Pierre Jouyet, the infrastructure, it has always as ratification of the London secretary of state for European been necessary for big political Agreement, which would limit affairs – stressed that the hitters to get involved. For too translation requirements in agreement remains a priority. long, the running in patents – or European patents, so making Despite last-minute lobbying the lack of it – has been left to them much cheaper to obtain from the CNCPI, the betting in people who do not have the than they are now. The six-month Paris is that France will sign clout to see changes through in German EU presidency, which up by the end of this year; the face of opposition from ended on 30th June, was something that will be welcomed those with a vested interest in characterised by attempts to get by companies across Europe the way things are at the both initiatives moving. and beyond. moment. Once leaders start For his part, Gordon Brown getting involved, however, Progress in France has already shown his IP obstructing progress towards a Up to now the London credentials when he was the cheaper and more efficient way Agreement has not entered into UK’s Chancellor of the of obtaining and litigating force because the French, under Exchequer. In 2005, he patents in Europe is much Jacques Chirac (and despite very appointed Andrew Gowers to harder to sustain. After all, strong lobbying from Alain review the UK’s IP framework knowing that the chancellor, the Pompidou), claimed to be and to suggest ways in which it president or the prime minister worried that its introduction could be improved. While the might start asking questions if would mean the marginalisation final report that Gowers negotiations are not progressing of the French language. Indeed, produced was not in itself a does concentrate the mind France has been witness to the groundbreaking piece of work, wonderfully. bizarre spectacle of the CNCPI, the fact that it had been All of which is excellent news Alain Pompidou the French Patent Attorneys’ commissioned in the first place for Alison Brimelow, as well as EPO president Association, lobbying against the was significant. To emphasise for all those in industry that until 30th June 2007 agreement; despite strong the importance he gave to the want to see Europe’s patent support for it from the French role of IP in the UK, on system reformed. The EU now Envious Employers’ Association (MEDEF). becoming prime minister, Brown has a set of leaders who, at a The attorneys explain they created a new government minimum, give every impression glances at his are worried that the agreement department – the Department of being willing to give them the will mean that there will be for Innovation, Universities and time of day and to listen to their successor

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