Wednesday, 6 January 2010

Are there too few patent litigators in Europe?

Writing on the IAM Magazine Blog earlier today ("A single patent can wait, Europe's priority should be more patent attorneys"), editor Joff Wild returned to a subject he previously addressed in September of last year: his thesis that the best way to get European SMEs to engage with the patent system is to ensue there more patent attorneys are seeking their custom. Citing a recent piece he wrote for the CIPA Journal, Joff develops his theme, which has repercussions for patent litigation too:
"... One of the stated aims of the European Union is to be the centre of the world's knowledge economy. That means creating and nurturing the innovative skills of the 500 million people who live within its borders so that the 20 million companies, the vast majority of them SMEs, which currently operate inside the EU can prosper and grow. If this happens, it should lead to more jobs, greater wealth-creation and higher standards of living. ...

... Logically, a relatively cheap single patent and less costly litigation should lead to more patenting among Europe's SMEs. And maybe it will, at the margins. ...

There are, I discovered, just 9,250 patent attorneys currently authorised to prosecute applications at the EPO. That's 9,250 out of a total population of 500 million Europeans. When you bear in mind that over half of these, 4,956 to be precise, are based in either the UK or Germany (there are, for example, more European patent attorneys in Munich than there are in the whole of France; and more in London than there are in all of Italy and Spain combined), then - quite frankly - that number becomes terrifying.

If Europe really is going to be at the heart of the 21st century's innovation economy, can we really do it on the back of the efforts of under 10,000 patent attorneys? I just can't see how. Not because there will be a shortfall in the number of people able to prosecute patents at the EPO, but because it is not possible to rely on just 9,250 people to give the accurate, patent-related business advice innovative European companies need in order to manage and exploit their IP rights to maximum effect. Remember, too, that at any one time a large proportion of that 9,250 is not going to be practising or will be working inside corporations and so not in a position to represent anyone but their employers. So, the reality is that we are talking about a far lower number actually being available for instruction.

... It seems to me that if we are really serious about patents in the EU, what we need to be talking about is how we get more patent attorneys on the ground. My belief is that patent attorneys are the people best placed to give SMEs business-focused, strategic IP advice. However, I also believe that many will only do so when they face more competition and so have to go out into the market to drum up business by offering something that their rivals do not.

... A Community patent and a single patent court are attractive to those who already use the patent system, but I am not sure how far they will encourage a whole new group of SMEs to start to engage. What might, though, is affordable advice tailored to their specific needs. And that, I believe, means getting a whole lot more patent attorneys out there in the field. Until this happens, I fear that there will continue to be a disconnect between the European SME sector and the patent system.

In short, we need more patent attorneys across Europe, because more will mean more competition between them; which, in the end, will mean a much better service for clients. If I were a European policy maker, working out how to do this is what I would be prioritising.
Joff's article addresses patent attorneys at the front end of the system, where SMEs and other clients first engage with the protection and exploitation of their innovations. However, the point may also be made with regard to patent litigators. As negotiators of the forthcoming Unified Patent Litigation System have recognised, patent litigation is not uniformly spread around the European Union: there are pockets of extraordinarily high-quality expertise plus vast expanses of patent litigation deserts. Further, while it is not easy to define precisely who may be described as a competent, qualified and experienced patent litigator, there is little doubt but that their total number is low, probably a great deal lower than that of front-end patent attorneys. If what Joff says of the competition imperative and the need to boost professional numbers is true for those who write patents and steer applications along the tricky path to grant, is it not equally true for those whose combination of legal, forensic and scientific skills enables patents to be competently litigated?

1 comment:

Megan said...

Hmm, is he counting just those registered as EPA, or also those who are practitioners before their national offices only, as well as lawyers who are able to participate in Intellectual Property matters?