Yesterday I had the honor of spending 30 minutes interviewing Francis Gurry, the Director General of the World Intellectual Property Organization (WIPO). The interview was conducted on the record and at the BIO International Convention being held in Chicago, this week. My interview with the Director General took place at 11:00am, prior to his panel session with USPTO Director David Kappos at 2:00pm.
The Director General spoke substantively about issues facing the Patent Offices of the world, as well as some possible solutions. Gurry also discusses harmonization attempts, work-sharing agreements and the crushing worldwide backlog of patent applications that could lead to irrelevance of the system. As you read the interview you will also see that he thinks it is possible that the rest of the world will adopt a US-like grace period, which echos Kappos’ recent push to not only get US patent reform enacted but to harmonize laws, but to push the rest of the world toward a uniform grace period. Gurry also indulged me in a bit of speculation regarding software and the worldwide disagreement on whether software should be considered patentable subject matter.
Gurry was quite engaged and gracious. He is extraordinarily well informed and conversant with the issues and processes on both a macro and micro level, as well as the political realities associated with harmonization and other issues that have for decades dogged the international intellectual property community. We could have easily talked for hours on all sorts of issues, and I hope to have the opportunity to go back on the record with him in the future.
Without further ado, here is my on the record interview with Francis Gurry.
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Gene Quinn (GQ): Thank you very much Mr. Director General for taking some time out of your day to chat with me.
Francis Gurry (FG): It’s my pleasure.
GQ: I have a few questions regarding work sharing and harmonization if that’s OK?
GQ: Now first, I understand that you were in attendance as an observer at last months IP5 meeting in China.
FG: That’s Correct.
GQ: What was your impression of the meeting and what, if anything do you think was accomplished?
FG: Since I was an observer as opposed to a participant, I think it’s really for the IP5 to makes it’s own assessment of what was achieved and how they went about it, but they are obviously continuing to discuss and to work on the 10 infrastructure projects all of which have important implications for work sharing.
GQ: The heads of the 5 offices agreed to meet again in Japan in the first half of 2011 to assess the progress.
GQ: From your position at WIPO what, if any, progress do you expect?
FG: The most immediately relevant project from our point of view, all of them are relevant, but the most immediately relevant is the one on the hybrid classification.
Trying to achieve a hybrid between the US, Japan and Europe, that’s very important for us because of course, as you know, we are custodians of the international patent classification and we would very much like to see the US move to an IPC based classification system. That, I think, is the intention in the longer run, it’s a question now of commitment of resources to get there. And this I think is perhaps the biggest challenge for the IP5, is committing the resources necessary to take these projects through to implementation, particularly when the projects and the IP5’s cooperation was just on the point of ratcheting up when the economic crisis occurred.
GQ: Nicolas Maury, the Director of the EPO for the IP5 and trilateral affairs said or has been quoted as saying that he thinks such a international classification, sort of a common classification would probably take 2000 man years, maybe 13 years to actually accomplish. Does that sound reasonable? I mean that seems a bit excessive to me.
FG: That’s certainly a lot and it does seem a bit excessive indeed, but they have made their estimates for all of these projects, of what is involved, so presumably he is basing it on that. When you consider the F-term system maybe quite a lot of time is required, but I think with as all of these things one by one. So if you can get the US to move across to an IPC based system, even if it’s a more complex system in IPC itself, like ECLA, because ECLA is IPC based, then that is an achievement. Then you see what sort of an accommodation you can have with F-terms.
GQ: So is the uniform classification system, is that sort of the “Holy Grail” for work sharing?
FG: No I think it is one of the tools. Look, for me, work sharing really, means voluntary arrangements, which are designed to achieve a rational division of labor in the international patent system given that in that international patent system what we’ve got is a number of tasks that are identical, that are performed by different offices so the extent to which you can say “Well look, we will leverage off the work that you have already done in this area.” To that extent I think it’s a very rational thing for us to be doing, or for the whole international system to be doing. Now, another aspect of work sharing I think, is common tools and that’s where I see the, common tools and common systems, and that’s where I see the IPC coming in. It’s a common tool, we should have, or hybrid classification/uniform classification system, we should have common tools. It’s crazy that we have a globalized world and different classification systems; it just doesn’t make any sense what so ever. It’s not rational and it’s not functional, it’s dysfunctional.
GQ: I know exactly what your saying, I know a lot of retired patent examiners from the US Patent Office, you know guys who have 30, 40 years in the job, you know real professionals and really committed and they’ve always told me that the classification is where it all comes down to.
GQ: If you have a good classification system, then the search is much easier to do and to some extent, almost does itself, you know if your familiar with the classification system so that’s why I was wondering how important you thought that that might be?
FG: Well I don’t have their experience, you know, obviously, so I am very interested to learn that view. I’ve always thought classification was an essential tool, it’s certainly in, if you look at the essential infrastructure, it’s in there.
GQ: Now one of the things in the US, whenever we talk about work sharing, that comes up, is question about whether or not that really is code for harmonization of laws, distinct from harmonization of process. I know this is an open-ended question, and maybe you can take it where you’d like.
FG: Sure, look it’s a very good question and I am glad you raised it because I discussed with colleagues in the IP5 but more generally in Geneva. I do not think that there is as yet, consensus internationally about work sharing. And why not? Well I think there are 2 fears out there, which for me are based on misinformation, but they’re out there, the 2 perceptions or fears. The first is that work sharing is a means by which the bigger offices can impose their results on the smaller offices. And the second is that work sharing is a means of restricting the TRIPPS flexibilities or achieving harmonization. I don’t think either of those views/perceptions is correct. I don’t think either of them corresponds to reality. I think work sharing is about rational application of principals that Adam Smith identified in the division of labor back several centuries ago.
So it’s a perfectly rational way of going about dealing with the problem of demand management. And let me just pause on the problem of demand management. As you know, we have some 3.5; our estimate is 3.5 million unprocessed patent applications around the world at the moment. We have to tackle that. That is not something that we can ignore. That spells in the long run the death of the patent system if we cannot cure that, because the demand is only going to become stronger. There is 1.1 Trillion US dollars invested in research and development around the world each year. That is not going to diminish the demand for patent rights. That is going to, if anything increase that demand. So we know that we have you know a problem that is with us not just as a present problem but as a future problem and we have to devise the means for tackling that problem. Work sharing is a very sensible way of going about it and for me it incorporates a whole universe of different voluntary arrangements of leveraging off each other’s work as well as common tools as I said common tools and common systems.
Does that mean Harmonization? In my view it doesn’t; work sharing alone doesn’t. It may be that the more you do work sharing, the more you think “Well wouldn’t it be more sensible if we also operated on the basis of the same underlying functional concepts of novelty and prior art?” But that may be a logical response to work sharing, to involvement in work sharing, but work sharing alone does not involve harmonization. For me, another way of expressing it, two other ways of expressing it are that you can say that, if you like, that harmonization is really concerned with legal harmonization and work sharing is concerned with technical and practical cooperation. So the examiners are not going to arrive at a common definition, but they might arrive at a common solution to a particular practical invention question.
GQ: One of the ideas that I’ve heard floated is if you get a patent in a particular country then you wind up going to the front of the line somehow for a more expedited review in other countries.
FG: That’s the Patent Prosecution Highway.
FG: Look I think there are a number of different experiments out there. It’s all very interesting actually. So one of them is the Patent Prosecution Highway, which is first action, when you get your first action from the first office then you go to accelerated processing in the second office. So that’s happening. There was a decision taken last year by the tri-laterals to include the PCT within the PPH and I think that’s a very positive thing, it’s a very good development. I’d like to see those two systems come together.
GQ: OK, I mean that’s sort of…
FG: So maybe you can come back to that but I’ll just go on to say then there is for example a different arrangement amongst the Vancouver group, which is Canada, UK, Australia. And then they are actually going to do mutual recognition and we are providing, we are building a platform for that form of cooperation amongst them. Then there is a plan amongst Brazil and 7 other South American countries, to put together a platform where they could use, the idea is a WIKI model. You take the first office’s work and then you add to it or improve it and the 3rd does and the 4th does and so on. That’s their idea, but these are all different I think schemes for work sharing and they’re all positive
GQ: The one thing that surprised me when I was looking into the PPH, David Kappos recently talked about how despite the US Patent Office’s efforts, it seems to be quite under utilized and I guess any time you have change or something new there’s a resistance and particularly maybe in the patent space where you’re dealing with attorneys who are conservative by nature and wanting to make sure they know the process before they jump into it. What do you see as ways to maybe move the PPH forward?
FG: Well I think the PPH has a certain limitation to it, you know, the numbers are small, several hundred, whereas the PCT is about 160,000 applications a year. And by definition you see, with the PPH, if it became generally used, then you couldn’t get expedited treatment in the second country, could you? Because you can get expedited treatment when you’re dealing with 300.
FG: 500, maybe a 1000, 2000, but if you have 160,000 suddenly then your expediting the whole lot.
GQ: Then you’re back in the same situation (laughter).
FG: So there’s a certain systemic I think limitation to the extent to which the PPH be used. What I think we are learning, I don’t think it’s necessarily conservatism on the part of the patent provision or be it that the patent profession is not noted for being revolutionary (laughter). But I don’t think it’s just that, I think that what we are doing is learning more about user preferences and user behavior. You know and I think that’s a good thing to create a more diverse product mix.
GQ: Can you elaborate a little bit on what your learning or what you are observing?
FG: Well, I would say that if you look at the PPH where is it most popular? And this is you know anecdotal rather than scientific.
GQ: That’s fine.
FG: Yeah I would say it’s popular in smaller countries, high tech, take a high tech country like Denmark. It’s very important for them to be able to get in to the major markets. So the PPH is a very good vehicle for them. US Company exporting out isn’t going to have so many other, everyone wants to get into the US market. A US company exporting out isn’t going to have so many preferential markets. It might have 3 or 4. So that is one thing we are learning is greater market differentiation in patenting strategy and having a product that satisfies; that appeals to that particular nation. Second thing is I think probably IT is one of the technologies that benefits from, because of the fast technological cycle that’s probably one of the technologies that is most popular for PPH.
GQ: Well that’s one of the things I suppose the entire world is struggling with. I know very well because in the high tech, software, IT area is where I personally do my work and with the length of time it takes to get a patent…
FG: Forget it.
GQ: You almost have to be going after something tremendously foundational.
GQ: And it seems like there’s a lot of lost investment opportunity because of the slowness of the system.
FG: Yes, and this is something we have to rectify.
GQ: And I know, I think that’s what, to some extent you’re going to be talking about later on today right? The Investors and investment and so forth?
GQ: Well I’ll leave that until then.
FG: Well I’ll say something about it, but the thing is there’s so many things to talk about.
GQ: Right, I know, no I know. The two things and then you probably have to get going, but if I don’t mention these my readers will probably tar and feather me, one is the grace period and two is patentable subject matter in terms of software. It seems recently David Kappos has been talking about trying to get the rest of the world to adopt a grace period like the US has. And at one point he even called it I believe, “the Gold Standard.”
GQ: So I know that this has been an ongoing debate for as long as I’ve been in the profession.
FG It has and we have certain holdouts as you know for that and Europe has not yet come across to…
GQ: Now you say “Yet” and you have a smile on your face so I guess the question where I really wanted to go is do you see on the horizon a potential to have some kind of a harmonization with respect to a grace period?
GQ: You do?
FG: I do, and I think it is, look I think it’s an important element of the overall legal architecture of the international patent system.
GQ: OK and then just to be…
FG: And I think it should be standardized. Why? Because you know because you’re really talking here, if you’d like just to be simplistic about the matter, the Universities are the factories of the knowledge economy. And you should have a vehicle for accommodating, on the one hand, the university scientists’ desire to publish and on the other hand the need to preserve confidentiality in order to preserve your patent rights.
GQ: This is very encouraging because a lot of times, from the US perspective, I think, when we start talking about work sharing, harmonization and the like, the typical perception is that means that the rest of the world wants the US to do it their way. Now I know that…
FG: On first to file it does (laughter).
GQ: Well, right. It looks like we’re probably going to be getting that relatively soon, so my position has always been that what we probably need, maybe even worldwide, is sort of like a moment like we had in 1952 here in the US where we threw everything aside and rewrote and started and said “OK, what makes sense, who’s doing what best and let’s adopt that.”
FG: Yeah, I couldn’t agree with you more. Why can’t we do that? Well, because the economic and technological circumstances are demanding it. We can’t for several reasons, I think, at the moment unfortunately. First there is this underlying political suspicion that harmonization is going to be another form of TRIPPS agreement if you’d like, on the part of the developing countries. I think there what we have to reach is a situation in which we recognize the need for a certain amount of functional standardization simply to make globalization work. And while at the same time respecting, as defined in the TRIPPS agreement, the so-called flexibilities for national policy action. But we wouldn’t be able to, I wouldn’t be able to use my mobile telephone here unless we had a certain amount of functional standardization going on. Everyone, there is a global use of technologies now we absolutely need that. Never the less, that legal problem is out there and we have to work on persuading, I think, the developing countries that at some stage we have to be able to work on the functional standardization of the international Intellectual Property System to make it fit for purpose for the global economy. And it’s not an easy, because there’s a lot of misinformation, there are a lot of misperceptions out there. So that’s, I think number one. Number two we have the problem of specialists. You know specialists and experts become very attached to their subject matter and to the way in which they do things. So at some stage, we now need political direction from the top about these matters. We’re going to need high legal, political direction saying, “You experts, solve this. We want an answer in 12 months. And we don’t care whether the answer is that you use secret prior art for novelty only or for novelty and inventive step, but we want one answer and not two.” And that is the next challenge.
GQ: Now on what time frame horizon do you suppose that these types of things can get dealt with?
FG: Well, I think it depends on political will. Is there the political will to do it and you have to have that political will before hand. If you have the political will, then it will be done. So I think your questions is how long will it take to get the political will.
GQ: Yes, cause it can all get done. I mean if we could just sit down in a room, we can design this.
FG: We can, that’s right, so how long will it take to get the political will? Well, I don’t know the answer to that question. I think it’s a very serious question.
GQ: Well it seems with the mounting crisis, as you pointed out, that you know we’re at almost the breaking point if we want to have a relevant patent system, we’ve got to do something. Do you sense that in the political sphere there are folks coming to that realization as well?
FG: It’s slow because intellectual property is unevenly, across the world, unevenly in the consciousness of politicians.
FG: You know it’s in the consciousness of politicians in the US, in Japan, in Korea, I think it is in India, you know it is in China, it is in Brazil, but is it in many other countries? And that depends; I think it’s not. For me, the Intellectual Property at base is the mechanism for translating knowledge into commercial assets. Now, in the knowledge economy with the investment that we have in knowledge generation now, that mechanism has to function and it has to function properly.
GQ: Well that maybe just and I know you’ve got to get going, but one quick question or maybe if we can go back and forth just a moment about software and about patentable subject matter because it seems you know putting aside the gene patent issues and you know maybe the real thorny things that almost bring some religion into the question, which is a whole other matter, it’s probably hard for me to think of a substantive area other than software where there is less agreement across the board. Do you sense that there is going to be any way to move forward where countries can come to some kind of commonality on what is and what is not patentable.
FG: I don’t think internationally yet because you can’t get it in Europe.
FG: So you know if you can’t get it within an area and countries that, relatively speaking, homogonous socially, economically, politically, technologically and culturally, let it loose on the International stage and it wouldn’t be a good thing.
GQ: And that’s the big problem because there’s even within Europe a number of different views.
GQ: But over time it seems as if the non-patentable viewpoint seems to be winning out. Is that what you see?
FG: I wouldn’t want to comment on who’s winning. (laughter)
GQ: That’s fine, but as we sit and wait for the US Supreme Court to issue its Bilski decision, which today another day has gone by without the decision, do you suppose that that may in some way influence the debate Internationally?
FG: I think so. I’m sure it will. You know people all around the world pay attention to US law and legal developments. In many respects it’s the most advanced market. And so they always pay attention to that and where it’s a pronouncement of the Supreme Court on a fairly fundamental issue, yes, this is bound to have influence.
GQ: Great. I really appreciate you taking the time.
FG: It’s a pleasure.
GQ: I mean there are so many things we can talk about.
FG: Yes I know.
GQ: Hopefully maybe we can do this again sometime.
GQ: But I really appreciate it!
FG: OK Gene, pleasure to meet you.