Monday 17 December 2012

The new European patent package, SMEs and the solo practitioner

The new package: will
there be anything in it
for small IP firms?
Now that the new European patent package is more or less done and dusted, subject only to possible and unexpected sabotage by the French, German or British governments, the time has come to consider what it all means for solo practitioners and small IP practices.  The European Parliament, the Commission and other "official" supporters of the new measures have all stressed how much benefit will be conferred on small and medium-sized entities -- businesses which have hitherto provided much if not most of the work for small and medium-sized IP practices. Will the new measures leave this happy correlation unchanged?

It's this blogger's guess that, while the patent filing side of things may remain unchanged, when it comes to litigation many SMEs will find themselves driven into the arms of larger IP practices, particularly where the resolution of the dispute is likely to require travel to two or more overseas destinations, as Lord Justice Kitchin indicated could easily be the case in his speech to the CIPA Congress this October.

This blogger feels sad that the recent experience of the modified Patent County Court for England and Wales, with capped costs, streamlined procedures and some scope for cost-saving through the instruction of patent attorney litigators, has come too late to have been considered as a possible template for a small-scale patent resolution forum under the new European regime. He wonder what others think.


  1. Aren't we being a little pessimistic. The idea of the UPC as trumpeted by politicians and therefore wholly ignored by the profession is to eliminate all those wasteful validation expenses that kill the joy of succeeding in getting a patent allowance from the EPO. If the idea turns out to be worth *nicking* then lets hope our SME has had the wits to make something of the idea itsalf and can therefore hit the courts.

    For many though its going to be a bigger question than before whether Europe is a market that will reeward their idea and national patents will continue to thrive

  2. I agree the PCC would have been an excellent model to consider as part of a UPC system. I do wonder though sometimes whether the prohibitive costs of patent litigation do have a positive side. At least SME's are careful not to get themselves into trouble. I've seen decision making concerning IP in SME's and it can be pretty atrocious when 'options' are available. I think giving SME's cheaper litigation would make them more likely to litigate when settlement or other strategies would be wiser commercially.