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It is time to tackle Europe's patent attorney deficit


The European Union currently has a population of just about bang on 500 million. These people live in 27
member states. Within these member states, there are over 20 million businesses. Big numbers, I am sure
you will agree.

Now one of the stated aims of the European Union is to be the centre of the world's knowledge economy. That
means creating and nurturing the innovative skills of the 500 million so that we can grow the 20 million. This
should lead to more jobs, greater prosperity and higher standards of living. Most readers of this blog will agree
that in order to create and nurture innovation - and certainly in order to turn it into something practical,
scalable and sellable - the patent system has a crucial role to play.

We all know about the on-going efforts to introduce a Community patent and a single patent court for the EU.
But I wonder whether these are really the pressing issues everyone thinks they are. I say this having just
found out how many patent attorneys there are currently authorised to prosecute applications at the EPO:
9,250. That's right - nine thousand two hundred and fifty. Out of a total population of 500 million. When you
bear in mind that over half of all European patent attorneys, 4,956 to be precise, are based in either the UK or
Germany (there are, for example, more EPAs in Munich than there are in the whole of France; and more in
London than there are in all of Italy and Spain combined), then that number becomes even more frightening.

If Europe really is going to be at the heart of the 21st century's innovation economy, can we really do it on the
back of the efforts of under 10,000 patent attorneys? I just can't see how. Not because there will be a shortfall
in the number of people able to prosecute patents at the EPO, but because it is not possible to rely on just
10,000 people to give the accurate, patent-related business advice innovative European companies are going
to need if they are to manage and exploit their IP rights to maximum effect. Remember, too, that at any one
time a good number of that 10,000 is not going to be practising or will be working inside corporations and so
not in a position to represent anyone but their employees.

The fact is that the first contact the vast majority of SMEs - the lifeblood of European business - has with the
patent system is via a patent attorney. But outside of countries such as the UK and Germany (and perhaps
some smaller jurisdictions such as Sweden and the Netherlands), attorneys are not easy to find. Those that
are out there are hardly fighting back the competition; so the incentive to offer high-quality, business-focused
advice is rarely going to exist, and neither is the need to be flexible with prices. Even in the countries with the
highest proportion of patent attorneys, it is not as if you can find one on every street corner. In the UK, I have
had a number of conversations with patent attorneys who will not see lone inventors because they are
regarded as more trouble than they are worth. And if it happens in the UK I would be very surprised if it does
not happen elsewhere.

So, it seems to me that if we are really serious about patents in Europe, what we need to be talking about is
how we get more patent attorneys on the ground. I know that patent attorneys are highly skilled and go
through years of scientific and legal education to get where they are, but maybe that level of rigour is not what
is necessary today - at least when it comes to SMEs. Instead, what needs to come much more to the fore is
the ability to look at a business, its assets, its products and its people, and to help ensure that the business
has a patent strategy (if, indeed, it needs one) that will give it the best chance of success. My guess is that

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this kind of advice will only become common place when there is more competition between attorneys, when
there is a need to go out into the market to drum up business and to offer something that your rivals do not.

A Community patent and a single patent court are attractive to those who already use the patent system, but I
am not sure how far they will encourage a whole new group of SMEs to start to engage. What might, though,
is affordable advice tailored to their specific needs. And that, I believe, means getting a whole lot more patent
attorneys out there in the field. What do you think?

European patent attorneys by country (selected)

Germany - 3,157

United Kingdom - 1,799

France - 822

The Netherlands - 397

Poland - 371

Italy - 356

Sweden - 289

Denmark - 171

Spain 156

Belgium - 154

Finland - 151

Sectors
IP politics, Patents, IP business

Comments

RE: It is time to tackle Europe's patent attorney deficit

Not to state the obvious but... the 'years of scientic education' that patent attorneys must endure does 'create
and nurture innovative skills'. Then when these budding scientists and engineers become professionals, their
innovative output drops to zero: the life of a patent attorney is, effectively, dotting the i's and t's on other
peoples' inventions.

Remember we still have this missing link between patents and innovation. Nobody's proved it. We in the IP
industry hypothesize about it, and we suppose it's there, but if that's true then why do the real innovators - the
scientists and the entrepreneurs - mostly either dislike IP or ignore it?

Let's wait til that link is proven before encouraging more people to stop being productive and start being pencil
pushing consultants. As you suggest, it might be better to embrace outsourcing IP applications to cheap
countries, and let Europe focus on doing the creating, with the European IP industry actually being relatively
small and being composed of IAM practitioners and business-focussed people.

I do see an inverse upside to more attorneys however, which is that more of them means that prices must
come down, which would limit wages, and make it a less attractive career comparative to staying in science.

Now this is the career path I took and I'm fully aware that the above comment makes me a hypocrite (although
FAOD I actually do believe our hype about IP and innovation). It just reinforces the need for improving the
image of IP, one thing you discuss on the blog often. But not with conjecture and 'Big Content' sponsored

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propaganda, but with hard facts and grassroots studies. We have a moral responsibility to prove that missing
link before we suffocate an already challenged technology industry with our own hyperbole.

Tom Grek, Yu & Partners - Associated with Rouse Legal on 25 Sep 2009 @ 07:54

RE: It is time to tackle Europe's patent attorney deficit

Regarding the rigorous training of patent attorneys, in my opinion, that level of rigour is even more important
for SMEs. When it comes to IP, large companies can afford a "brawn, not brains" approach, and file thousands
of patent applications without bothering too much about their individual content. For SMEs, however, every
single filing counts, and having the right support to make it pay is crucial.

Moreover, in-house attorneys working for large companies can become very specialised in very specific areas
of technology and/or very specific legal areas (drafting, prosecution, opposition, litigation). Patent attorneys
working for SMEs in private practice, on the other hand, must be prepared to perform adequately in a wide
spectrum of tasks. This is impossible without rigorous training.

I must however point out that the statistics regarding the numbers of qualified EPAs are flattered by the
"grandfathers" who in certain countries vastly outnumber those having actually passed the European
Qualifying Examination. While many of these "grandfathers" are very strongly qualified and have a wealth of
experience, some don't have any technical background or experience in actual patent work. It is certain that in
particular in those countries it is crucial to increase the number of qualified EPAs, but also that it must be done
not by watering down the qualification requirements, but by a much more important investment in recruitment
and training.

These are of course my own personal views and do not necessarily reflect those of my current, past or future
employers or clients.

Rodrigo Calvo, Gevers on 25 Sep 2009 @ 09:33

RE: It is time to tackle Europe's patent attorney deficit

I agree that it is important for an innovative economy to have sufficient commercially aware patent attorneys,
but I have some sympathy for those patent attorneys who opt out of advising individual inventors. Strong
patent protection alone does not make a business succeed, whatever the belief of the typical armchair
inventor. Unfortunately, the only business plan of too many individual inventors is "get a patent, sell it for
millions". In which case, where's the business for the commercially astute patent attorney to understand
anyway?

In my (personal) view, we need to dispel the popular public view that patents exist to protect the ideas of the
hopeful hobbyist operating in the isolation of a garden shed. Instead, we need to develop a strong public
understanding that patents (and other intellectual property rights) are a business tool that should be used
appropriately by ALL businesses to protect their investment in innovative solutions. In an economy where 80%
of the average company's value is intangible an intellectual property strategy is as essential as appropriate
finance was to a business of primarily tangible assets.

Until more businesses start to understand the real value of their intellectual property protection, patent
attorneys will continue to service the companies who have already seen the light, because those companies
that value their IP also value their IP advisors. The IP aware companies are the ones that we need to see in
the press, not the eccentric inventors. These companies will lead the way in demonstrating how an investment
in good IP advice and strong IP protection is an important factor in a successful business.

High quality, business-focussed IP advice is expensive, because IP is not simple to understand, but it should
never be more than a tiny fraction of the value of the business that it supports. I have never yet had a client
who has complained about the cost of my advice, once I have explained the value to their business. If we can
propagate that kind of understanding throughout European business, we have a chance of engaging our
10,000 patent attorneys helping businesses that can really succeed, rather than indulging the recklessly
optimistic.

Matthew Dixon, Harrison Goddard Foote on 28 Sep 2009 @ 00:07

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RE: It is time to tackle Europe's patent attorney deficit

I believe that one reason scientists and entrepreneurs often ignore IP is that IP attorneys have not been
terribly effective in communicating the importance of patent law to entrepreneurs. I don't agree with the above
comment suggesting that there is a dichotomy between productivity and patents. Perhaps attorneys don't
directly encourage innovation, but at least their assistance in protecting the fruits of innovation can prevent
creators from becoming discouraged when patent litigation issues inevitably arise.

http://www.GeneralPatent.com

Gena Mason, General Patent on 28 Sep 2009 @ 04:16

RE: It is time to tackle Europe's patent attorney deficit

Hi Joff,

I think you have spotted a very interesting and real problem but are looking in the wrong place for the solution.

Incidentally, it is a much bigger problem than you may think. The European Patent Attorney profession does
not just work for Europeans! Much of the work they receive is from outside the EU primarily USA, Japan etc.
Look at the latest EPO statistics for 2008, which are sobering reading. Many EPA firms are over 60% agency
i.e. non-EU work. This means that there is not enough European originating work to support the current
European profession. Another sobering thought?

You are identifying an important gap, which incidentally was the subject of a keynote presentation by Robert
Pitkethly of Oxford at the recent CIPA Congress in London. This is the gap between the service offering of
conventional European Patent Attorneys and the needs of commercially focused users and, importantly,
potential users of the system for commercial advice.

I’m a European Patent Attorney and have the experience to fill the gap but the vast majority of European
Patent Attorneys cannot fill this gap. They are trained in a specific way to provide a patent office focused
service and in the main do not have the expertise or skills or desire to fill this gap. Most would actively shy
away from providing suitable services because they know they cannot deliver what is needed. Most have
come straight from University, have never experienced the commercial world first hand and have no
experience of devising and implementing a real IP strategy (I don’t mean a filing programme!) for anyone.

In addition the service needs you identify require a very different mindset and business model. Most patent
service providers bill their clients by the hour and a plethora of small to large service charges. It's what EU
clients are familiar with and is what US and Japanese agents want to see. Their business model does not sit
well with a more project or retainer based management consultant role needed by SME's or those without
CIPO expertise. On the other side the clients do not wish to pay for advice and have over the years come to
expect advice for free and payment only for the implementation phase i.e. patent filing and prosecution. Patent
attorneys have largely encouraged this behaviour and have undermined their role as advisors. Given the
commoditization of IP services there is even less room for "free" advice. The profession is not incentivised to
provide the services needed.

Whilst I have some sympathy with Matt’s comments about the recklessly optimistic, the problem is that the
patents profession as a whole has been very happy to take money from the recklessly optimistic for some
time. We have not been good at encouraging would be millionaires to use a savings deposit account as
opposed to a patent to realise their dreams! So who can they turn to for advice? Not the patents profession
I’m afraid.

There is a wealth of IP opportunity out there, which is not being nurtured through IP ignorance. I agree
Education is important but who is going to provide that and when all are educated who will provide the CIPO
type service required to achieve maximum value?

My solution is to leave the European Patent Profession well alone and let them get on with what they do best,
which is providing the implementation phase of IP. We do need, however, to identify and develop others with
the right experience and skills to fill the gap. No easy answers I'm afraid.

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Regards

Nick White TangibleIP

Nicholas White, Tangible IP Ltd on 07 Oct 2009 @ 18:24

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