Not seeing the wood for the trees: is the patent system still fit for purpose?

(for a profile on this seminar click here)

Alison Brimelow, in her lecture, raised many of the policy challenges that face the patent system in this globalised economy. Her perspective was that of an outgoing EPO President and, therefore, included a focus on workloads of the European Patent Office, backlogs and the appropriate pricing structure for patents. Acknowledging that the system was a victim of its own success, Alison Brimelow highlighted that patents, now, are being seen as a good in themselves, rather than as a grant that marks innovation. Particular issues such as unnecessary complexity, avoidable duplication and whether the patent system should remain a one-size-fits-all model were raised. Looking forward, the practical difficulties of negotiation amongst self-interested nations were raised, as was the importance of the Development Agenda for the economically emerging countries. In short, Alison Brimelow asked us to look again at the overall system and to have the courage to either reform it effectively or to admit that it is beyond our capabilities.  Chris Dent attended the lecture and gives us his thoughts.

Alison Brimelow, the now outgoing President of the European Patent Office (EPO), gave a typically entertaining and challenging presentation as the 2010 Francis Gurry Intellectual Property Lecture. I now have the pleasure of engaging with her words and offering my reflections on the issues she raised.

I’ll start, as she did, with a quote from John Donne – in fact, these are the words that immediately precede those that she gave:

Why grass is green, or why our blood is red,

Are mysteries which none have reached unto.

In this low form, poor soul what wilt thou doe?

When wilt thou shake off this Pedantry,

Of being thought by sense, and Fantasy?

The work that this is taken from is “The Second Anniversary: Of the Progress of the Soul”; and, according to Martz, is Donne telling us of the ‘true end of Man’ – that empirical investigations miss the ‘essential truth’ of our existence (‘John Donne in Meditation’ (1947) 14 ELH 247, 269).  Such call may be taken as suggesting a focus on research and technological innovation is not in the interests of our spiritual health…

Now, I do not mean to come across as “clever-clever”, trying to outdo someone who is, by now, back on the other side of the world. My point is connected to the thrust of her lecture – possible changes to the patent system. In particular, my goal is consider reform in terms of temporally sited nature of the system and the temporally specific nature of any reforms that could be proposed.

First, the system itself. I do not think we can look at what we have as a cohesive whole – it is fragmented by nation, region and time. Our 21st century setup is, to a large extent, a 20th century structure that sits on a 19th century framework and yet still has links to its 16th and 17th century origins. Even in England, much as changed since Elizabeth I and William Cecil chose to use privileges granted by the Crown to further the English economy – even the 1624 Statute of Monopolies (12 years post Donne’s poem) preceded both the English Enlightenment and the 1648 Treaty of Westphalia that is said to underpin the concept of the nation-state. By the time of the reforms of the 19th century (and the debate as to whether the patent system should continue) there were radical shifts in the understandings of knowledge, governance and economics (from mercantilists to the classical theorists like Smith). Further, since the 1850s, there have been more changes in the governance, the relationships between states and economics (the likes of Veblen and Marshall working at the end of the 19th century). There are also questions whether the shifts in international negotiations and the concerns that face the system in the 21st century (the privileging of “green” technology and issues around the development agenda) mean that what we have now is/should be distinct from the 20th century system.

The nature of the system/s informs, and is informed by, its purposes – the purpose as understood by the nation-state that grants the patent and the purpose/s as seen by the players in the system. While, to an extent, every government has considered patents to be a tool for economic development and most patentees see them as a way of making money, it is the subtleties of policy assumptions and strategic practices of patentees and their competitors (made possible by the tinkerings of nation-states that arose, in part, out of the complaints of the users of the system) that have changed over time – with each shift limited by the opinions, attitudes and prevailing mind-sets of those making them. And let it not be forgotten that the historical and cultural differences between the regimes in place in different countries…

Alison Brimelow went so far as to acknowledge that the London Agreement on translations for the EPO and even the European Patent Convention itself are creatures of their own time – the former concluded in the dying months of the 20th century and the latter in the distant past of 1973. If these significant reforms are already less than ideal after such a short period of time, is it possible that more effective, longer-lasting, changes are possible? This prompts a further question: against what criteria should we judge major reforms? One of the specific calls Alison Brimelow made was for a reduction of complexity – and yet complexity is not, in itself, a bad thing. In the time of Donne, people are alleged to have said “God is in the detail”; now that is where the Devil resides. Efficiency, too, is a lauded principle that is attached to present understandings of the economy and society.

Leaving aside practicalities, such as the backlog and the fee structures at the EPO (which may be seen as details to occupy the minds of accountants and Presidents), if we are to build the future, as Alison Brimelow exhorted us to, to build a truly global system, then we should first consider if there is a solid foundation upon which to start. The fractured nature of the system, to my mind, suggests that any major reforms – those that do not involve wiping the slate clean – will be compromised by the lack of cohesion in what we have at the moment. If, as Martz also said, Donne believes that true knowledge comes through humility, then perhaps we should choose one of Alison Brimelow’s options – to have the courage to fail quickly. Reforms that go further consciously situated tinkering may be beyond the capabilities of divided community of nations.

For those interested in the early days of the patent system, you can have a look at a couple of my articles available from SSRN:

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