CIPA
PAtEnts ARE BY tHEIR nAtURE REstRICtIVE of
CoMPEtItIon, ALtHoUGH soMEtIMEs tHE CoMMIssIon
sEEMs UnWILLInG to ACKnoWLEDGE tHIs
should be reopened because of inconsistencies Commission turned its attention to patents in backlog problem. D-day for divisionals is October
in the EPO decisions, the EPO decided that it the pharmaceutical industry and alleged anti- 1, 2010, and many patent attorneys are already
would refer the matter to the Enlarged Board of competitive abuses of the patent system. Of making preparations for a flood of applications
Appeal. CIPA made submissions to the Board, course, patents are by their nature restrictive at this time.
supporting the existing position. In contrast, of competition, although sometimes the
the UK government, based on advice from the Commission seems unwilling to acknowledge
The changes in the rules for divisionals also reflect
UK IPO, made submissions that the existing this. CIPA members have made submissions
an unwelcome trend in procedure. This is the
EPO approach was too broad and should be to the Commission, and in its final report, the
reintroduction of non-extendible deadlines—in
narrowed. A decision is awaited. It should be said Commission was significantly more supportive
this case, for filing divisionals. The impact of this
that, although the UK IPO approaches software of patents as providing fundamental support
will undoubtedly be increased cost and concern
patents in a technically different way from the to the pharmaceutical industry. Nevertheless,
from businesses about the risk of losing patent
EPO, only a small percentage of UK applications practitioners cannot be complacent about
protection as a result of an administrative error.
are rejected on this ground, and it is also expected political pressure in the industry.
Some businesses are considering a range of
that the examination for inventive step will leave
arrangements for improving their position in
essentially the same patents granted, whether
Abusive behaviour has also been a theme at
relation to filing divisionals—CIPA fellow Jim
they take the UK or European route.
the EPO. Like other patent offices, it is very
Boff has written about protecting the client’s
concerned to reduce the backlog of applications.
position in relation to the new rules.
The influence of politics is not confined A considerable amount of steam has built
to software. Pharmaceutical patents have been up regarding alleged misuse or abuse of the
However, 2009 saw a positive development on
exposed to the spotlight too. Pharmaceuticals are application system. One area of focus has been
European harmonisation, which benefitted
seen as a key area of economic interest for the UK divisional applications, where it is repeatedly
from support from the European institutions as
government and therefore particularly relevant suggested that divisionals are used to ‘game’
well as the UK IPO. This follows the signature
to UK patent attorneys. Issues for high-value the system. As a result, amendments have been
of the London Agreement in July 2008, which
patents will inevitably be pushed further, and made to the rules for filing divisionals. These are significantly reduces the costs of ‘nationalising’ a
the EPO is currently considering cases arising intended to restrict ‘abusive’ use of divisionals granted EPO patent. There has been significant
out of the European Patent Convention 2000, but, in CIPA’s view, will actually restrict perfectly progress on the European Patent Litigation
including those relating to second medical uses sensible use of divisional applications, may Agreement (EPLA), since it was adopted as an
in the devices field. CIPA has made submissions well result in increased precautionary filings EU initiative. The European Court of Justice has
on these issues also. And last year, the European of divisional applications and could worsen the been asked to decide on its constitutionality and
20 World Intellectual Property Review Digest 2009
www.worldipreview.com
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