Common currency creates challenges for the unitary patent

By Gene Quinn
February 12, 2015

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Jim Pooley is an American patent litigator and diplomat. He has recently ended his 5 year term as Deputy Director General of the World Intellectual Property Organization (WIPO), where he managed the PCT. I interviewed Pooley on January 22, 2015. In part 1 of our interview we discussed harmonization generally, and specifically the need for an international grace period. In part 2, which follows, we discuss European efforts to adopt a unitary patent and otherwise harmonize patent laws between and among the countries of the EU. Given the fragility of the common currency in the wake of the Greece disaster, I wondered if further talks of unification efforts, such as on the patent front, might be more challenging.

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QUINN: Why has it been difficult to achieve harmonized prosecution? What’s causing the problem? It seems to me we do have this streamlined application process, which works extremely well. What we’re really talking about here is a more streamlined prosecution process, which just seems to me to be the next logical step. There’s really no point in examiners all over the world reinventing the wheel every time they pick up an application.

POOLEY: Yeah. I wish I really knew. Everyone talks about the core of the problem lying with German chemical companies. But I think at a more general level when we’re trying to negotiate things with Europe we face a challenge. Remember when Henry Kissinger says I want to talk to Europe, who do I call? We have 28 separate jurisdictions that value their sovereignty and that find it difficult among themselves to take a positon. The EPO is one single organization when it comes to process, but you can’t negotiate with them at a political level because they’ll engage you in a conversation but at the end of it you say, “Well, what can we do?” And they’ll say, “Well, you know, we don’t have the mandate. That’s up to the member states.” And so it’s a little bit more challenging in large part because you don’t have a single entity that makes a decision on these issues.

QUINN: Not to go too far afield, but if you have some thoughts on this I’d really like to hear your thoughts. I thought when Europe started to adopt a common currency that may be the break in the log jam that would over a number of years ultimately lead to something that approximated in certain ways a United States of Europe.

POOLEY: Yes.

QUINN: It doesn’t seem to have happened. And in fact now you hear the problems with Greece and they may be leaving and Germany is upset because they have to bail everybody out. What is your sense of the playing field in Europe?

POOLEY: Well, I think particularly from the perspective of today with the Euro once again in crisis people look back on the decision to go with the common currency and many people here believe that that was a step too far. That engaging in the expectation that if we do this it will naturally bring us closer together was perhaps way too optimistic. And too risky. And that risking the kind of fiscal instability that we have seen recently in order to push everyone towards a closer political union some people are saying now was a very bad bet to make, without a real supra-national bank and without having first knitted the countries together better politically. And it looks in hindsight like it was naïve to expect that these countries would be able to keep to their budgetary promises in order to make the single currency work and that the problems that they have now, these vast disparities between the north and south, should have been anticipated and that they should have taken it a bit slower. And so now they’re in a very high risk situation and they’re having to pump a lot of money into the economy and pray that it works. So, yes, there are certainly people here who think that in hindsight the common currency was a premature move.

QUINN: And do you suppose that is going to infiltrate the discussion about the intellectual property laws, whether it be with a unitary patent or whether it be with really trying to more harmonize the laws and processes as well?

POOLEY: Well, I think that IP laws are not necessarily tied to the currency problem, but it’s a constant issue in Europe that there are more than two dozen decision makers with sovereign rights.  So trying to get anything agreed is something of a challenge. Right now of course it’s not just the unitary patent but also the trade secrets directive is being negotiated. But as we all know in that area the devil is really in the enforcement details. And I think it’s going to be quite a heavy lift for all of these sovereign countries with their own traditional systems of enforcement to come to an arrangement that allows them to have roughly the same very predictable systems for enforcement of trade secret rights. It’s the same thing that they address in many other areas quite frankly. So it’s not unique to IP and I don’t think that the issues that either the unitary patent or the trade secret directive are facing are tied to the currency problems. It’s just the fact that Europe is really a federation of sovereign countries that speak different languages. They’ve gone an enormous distance in the last 65 years in knitting together a market that works very well. But as we’ve all seen there are a lot of political and financial risks in the current environment. And those risks seem to be playing out now.

QUINN: Where I was going with that, to some extent I suspect that if the common currency had been a success then I think there would probably be a larger appetite for taking other steps that would unify Europe, at least in certain ways. With the common currency not being a success I wonder how that’s going to play out with the unitary patent for example. It seems from where I’m standing that it’s a little bit of a fragile endeavor and people in European countries are having to some extent a bit of buyer’s remorse.

POOLEY: Yes. I think you’re right. If everything had gone swimmingly with the common currency and Europe was just moving as they say here towards ever closer union, and they weren’t experiencing the problems and the resentments that now exist among some of the countries I think it would be better, it would be easier for them to do a whole lot of things, the unitary patent included. As it is, yes, I imagine that the current environment is creating a lot of suspicion and making agreement on many, many issues more difficult than it would be otherwise.

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The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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