Battistelli: Many Apple patents would not have been granted in Europe

EPO President Benoît Battistelli said that from a legal point of view the EU patent court could remain in London. [EPO]

Europe is well on track to having the highly-anticipated EU unitary patent in place, by late 2016. The aim will be to deliver “rigorous” licences to avoid any ‘patent war’ as it is the case in the US, the President of the European Patent Office (EPO), Benoît Battistelli, says.

Benoît Battistelli has been the EPO President since 2010. The organization was set up in 1973 outside the EU umbrella and comprises 38 members, including all the EU member states. It has been tasked with the implementation of the upcoming unitary patent.

Will the first unitary patents be granted in 2016?

We are very close to the finalisation of the unitary patent project. There have been four important decisions in 2015. Firstly, the validation of the legal basis of the unitary patent by the European Court of Justice. It will be a patent granted by the EPO, with unitary protection, which means automatic protection in 26 member states (Spain and Croatia). Secondly, member states in June have agreed on a low and attractive renewal fee of the unitary patent, which represents a huge reduction of up to 80% compared to the current costs. Thirdly, Italy decided to join this scheme. Finally, we are about to finalise, probably in mid-December, the adoption of the financial rules and the distribution key to share the money from the renewal fees among the EU’s member states.

But is the whole legal framework ready?

We will be legally and technically ready to deliver a unitary patent from 1 January 2016. However, the entry into force is link to the opening of the new Unitary Patent Court. Here the news is also good. The preparatory work has progressed well. From the technical point of view, the court could be open sometime next year. But it is required that 13 member states ratified its protocol, including France, Germany and the United Kingdom. For the moment we have eight ratifications, including France. Four or five ratifications are about to be finalised in the next few weeks, such as Finland. We are optimistic that in 2016 we will meet the required ratifications. Therefore it is realistic to consider that the first unitary patent could be granted sometime in the end of 2016.

How much time will be saved for the applicants once the system is in place?

It represents a huge simplification of the project. The pre-granting phase will be the same, with one single interlocutor (EPO). But today, once you have your patent, you have to decide in which country you are going to validate it. Then it becomes a patent for a given member state, and you have to deal with the national patent authorities of each country, and with each national court in case of litigation. Now the EP will be the only interlocutor for this phase too. That is why it will become much easier for SMEs but also for research centres and universities to benefit from a good, strong protection in all Europe.

Spain is the only country that rejected to join the unitary patent as the Spanish has not been included as one of the languages to be used. Do you believe that Spain would eventually join?

My personal view is that, in few years, Spain will join, because now that Spain is alone, the economic constrains will be taken more into account. But it could take some time. By the way, by joining the EPO system, Spain accepted the three language system. In terms of attracting investment, the use of unitary patent will be very important. I am convinced that foreign investment will privilege countries that are part of the system.

Have you had any feedback from investors in this regard?

Not a precise one, but this is clearly the message we receive when we talk to American or Asian companies.

The so-called Industry 4.0, the growing merger between the digital and the industrial sectors, could increase the number of patent applications. Are you concerned that the patent system could be overloaded?

We will have to organize ourselves to be able to receive more demands. That is why we are increasing our efficiency in order to be able to treat all these demands with the same timeline and quality. I think it will be progressive, but we have to be prepared.

In particular, on the litigation side, there is a very intense war between some tech companies such as Apple and Samsung, for example. Do you fear that this ‘patent war’ could also hit the European unified system once the digital world gains more weight in the industry?

First, we have to ask ourselves why this ‘patent war’ is happening mainly in the US and not in Europe. The reason is because there are many patents in the US granted to Apple which would have not been granted in Europe, because we are more rigorous and more selective that in the US. In my view, this ‘patent war’ is largely due to a dysfunction of the US system, and the fact that there are some fields, such as businesses methods, that you can patent in the US but not in Europe. Secondly, some of the most important issues are not link with patents but with designs, which is not the same thing. In fact, we have some issues in Europe with that but not at the level of what we see in the US. We are more rigorous, and there are many patents that are not granted in Europe but they are granted in the US.

So once this Industry 4.0 reaches cruise speed you don’t expect a US-type war here in Europe…

Not at all, because we will continue applying our rules and practices. It is going to be more and more difficult, clearly, but I am confident that we will continue to deliver quality patents. 

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