An exercise in patents

In 1898 a German company, Bauer, was granted a British patent for a protein supplement made from water soluble preparations of glycerophosphates and albuminoids. A hundred years on, Sanatogen is still fortifying the over-forties. But it will take more than a tonic to lift Europe’s patent system out of the complex, slow and hugely costly […]

In 1898 a German company, Bauer, was granted a British patent for a protein supplement made from water soluble preparations of glycerophosphates and albuminoids. A hundred years on, Sanatogen is still fortifying the over-forties. But it will take more than a tonic to lift Europe’s patent system out of the complex, slow and hugely costly morass into which it has sunk since the European Patent Office was founded 21 years ago.

As the EPO admits, a Euro patent is only granted after a search of more than 30 million documents, an exercise that can take four years or more. The cost of awarding a typical European patent across eight countries and lasting 10 years can be £20,000, as the patent, a complex legal document, has to be translated into the language of each country it covers.

And because a European patent becomes a national patent in each state, it is subject to that state’s patent law. There is also the possibility that a European patent may be thrown out by one or more states.

For the small, innovative engineering firm, protection of intellectual property is a costly nightmare. Inventor James Dyson, for example, is reputed to spend more than £1m a year keeping his 40 patents up to date on his Dual Cyclone cleaner.

But last year, in an effort to make Europe’s patent system more accessible to small firms, the EPO cut its fees by 20%. The European Commission issued a green paper on a single Europe-wide patent written in a single official language (English) and which would be equally applicable and enforceable throughout the EU.

Most UK patent lawyers and attorneys think this unitary European patent doesn’t stand a chance without a great deal of fudge. France, for one, would have to rewrite its constitution since it says no document has legal force unless written in French.

And how would such a unitary patent be enforced? At the least, it would require the harmonisation of patent law in such areas as employees’ patents, the use of patent agents and the recognition of professional qualifications. The commission is now studying the responses to its green paper and a white paper is expected later this year.

However, a more practical aid to small firms seems closer. Earlier this year the commission put forward a draft directive for a quicker, simpler and cheaper way of giving limited protection to technical inventions. It is based on the utility model which is widely used in the EU, except in the UK, Sweden and Luxembourg.

Utility models offer limited protection for a maximum of six to 10 years and are granted without the need for a full examination. They are useful for small firms wanting fast protection for a minor invention with a relatively short market life.

Potentially at least, the benefits of a community-wide utility model would be quick and simple registration procedures with less stringent tests than for a patent, lower costs and faster granting of protection.

For a big invention, the utility model would offer fast, temporary protection until a full patent was granted. Sarah Merrifield, an associate with patent attorney Boult Wade Tennant, says this system is widely used in Germany where firms can get utility model protection in three months, then drop it if they subsequently get a full patent.

So far, says Merrifield, there’s no indication when the directive is likely to come into force or whether it will be significantly different from the current draft. Also, she says, the scope of protection of an EU-wide utility model is uncertain.

But while Europe waits to see whether the Commission can unravel the muddle, the UK is doing its bit to make the protection of intellectual property cheap and easy. For £25 you can now write your own UK patent application. Well, not quite. The Patent Office has produced a leaflet explaining how to write your own application. Once you have lodged it and paid £25, the date of your invention, the important priority date, is established.

But you then have just 12 months in which to file a full patent application drafted by a patent attorney. However, for another £130, the Patent Office will do a full search. And a further £70 buys you an examination to ensure your invention meets the rules of patentability.

So, patent lawyers’ fees aside, for £225 you can get a UK patent in just two years. And in some cases, says Merrifield, it can be 12 months.