Policy recommendations for the Belgian patent system

World Patent Information 30 (2008) 309–319 www.elsevier.com/locate/worpatin

Policy recommendations for the Belgian patent system Bruno van Pottelsberghe de la Potterie a,b,*, Siska Vandecandelaere c, Emmanuele de Be´thune c b

a European Patent Office, Erhardtstrasse 27, D-80469 Mu¨nchen, Germany Universite´ Libre de Bruxellles, ECARES and CEPR, Solvay Business School, CP-114, 50 av. F.D. Roosevelt, B-1050 Bruxelles, Belgium c Centrale Raad voor het Bedrijfsleven – Conseil Central de l’Economie, Blijde Inkomstlaan 17-21, 1040 Brussels, Belgium

Abstract This article presents 10 broad policy recommendations aiming at improving the awareness and a sound use of the patent system in Belgium. This exercise was motivated by the relatively low reliance on the patent system in Belgium, by both applicants and inventors. The main objective was not to stimulate ‘blindly’ the filing of more patents applications, but to ensure that inventions that should be protected are indeed patented. The recommendations are structured around four main pillars: (i) improve access at lower costs; (ii) improve awareness through training; (iii) improve information; and (iv) improve visibility of Belgium as a European actor. Concluding remarks underline the importance of involving the social partners for an effective implementation and the need for a cost–benefit evaluation of several recommendations. Ó 2007 Elsevier Ltd. All rights reserved. Keywords: Policy recommendations; Patent system; Belgium; Patent prize; University IP policy; IP audit; IP training; SMEs; IP information; Litigation system; IP forum

1. Introduction The relatively low patenting performance of Belgium has led the social partners to investigate what type of policies could be implemented to stimulate the sound use of patents by knowledge-generating institutions. Whereas it is well known that the innovative efforts of Belgium (as measured with its relative level of R&D expenses, or R&D intensity) is similar to the European Union average, its relative patenting performance is very low. Fig. 1 clearly illustrates the issue: Belgium is within the group of coun-

*

Corresponding author. Address: Universite´ Libre de Bruxellles, ECARES and CEPR, Solvay Business School, CP-114, 50 av. F.D. Roosevelt, B-1050 Bruxelles, Belgium. Fax: +32 (0) 2 650 44 75. E-mail address: [email protected] (B. van Pottel sberghe de la Potterie). 0172-2190/$ - see front matter Ó 2007 Elsevier Ltd. All rights reserved. doi:10.1016/j.wpi.2007.12.001

tries with the lowest number of priority filings per researcher.1 This result can obviously not be taken as an indicator of a relatively low level of research productivity, as there is no reason to assume that researchers in Belgium have a particularly low productivity. Two hypotheses may be raised to explain this relatively low patenting performance in Belgium. 1.1. A low propensity to patent Given the importance of the chemical and pharmaceutical industries in Belgium, one would have expected a much

1 Different routes can be used to obtain a patent. The majority of applicants start with a national patent, commonly called a priority filing. If the applicant wants to operate exclusively in his/her home market, he/ she will stop there. If not, he/she will have to make (an) additional filing(s) in other countries at last one year after the priority date. For protection in several or all of the EPC-countries the applicant can use the centralised EPO procedure. The different patenting routes are thoroughly explained by Stevnsborg and van Pottelsberghe [1].

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Priority filings at NPO per researcher

0.20

0.15

0.10

0.05

0 PT IN TR SK BE SG ES MX GR IE CA PL FI DK CH AT RU NO NL CN IT SE BR FR ZA GB US JP DE AU Fig. 1. Priority filings per researcher, 2003. Priority filings (PF) in 2003 at national patent offices per researcher. PF at JPO have been divided by 3. Source and methodology: de Rassenfosse and van Pottelsberghe [21], computed from PatStat April 2007 edition and UNESCO Institute for Statistics.

higher level of patenting, as these industries traditionally have a relatively high propensity to patent their inventions. It may rather be the consequence of a very low propensity to patent inventions in Belgium. Even if the priority filings directly filed at the EPO by Belgian-based inventors are taken into account, Belgium is still amongst the laggards countries in terms of the number of patents filed per researcher (cf. Appendix A). Patenting is very much concentrated in a few large enterprises. This is true for a lot of countries. At the EPO, 10% of the applicants are responsible for about 90% of the applications. Consequently, 90% of the applicants are responsible for only 10% of the applications. A similar picture occurs for Belgium. However, both types of firms, large and small, have a much lower propensity to patent their inventions than their counterparts in neighbouring countries. As shown by Peeters and van Pottelsberghe [2], the size of a firm’s patent portfolio depends on several factors related to its size, its competitive environment, its technological specialization and its innovation strategy (e.g., the share of basic research, collaborative R&D with universities, product orientation, the perception of barriers to innovation). 1.2. The effect of foreign firms Another potential explanation of the relatively low performance observed in Fig. 1 may be related to the high share of foreign R&D in Belgium. As multinational firms with research activities abroad generally manage their IP in their home country, the number of patents invented in Belgium but applied abroad would not be accounted for in Fig. 1. Guellec and van Pottelsberghe [3,4] have measured the importance of this phenomenon. They find out that the share of patents that are invented by domestic

inventors but applied for by firms based in a third country is relatively high for Belgium, from 25% to 35%. These figures tend to contrast or compensate somewhat the results presented in Fig. 1. However, even if a virtual increase of 25% was allocated to Belgium in order to account for its high share of foreign R&D, its relative position would still be worrying (keep in mind that the ‘foreign filing’ impact also occurs in other countries, but to a lower extent). 1.3. A worrying picture The situation depicted in Fig. 1 is worrying, for several reasons. First is the current context of internationalization of research efforts and the global diffusion of knowledge. Ideas that are created in a country may be exploited or commercialized in other countries. This globalization of the exploitation of knowledge makes it crucial for firms to effectively protect and leverage their ‘ideas’. Not having a patent at home and abroad reduces the firm’s ability to strengthen its competitiveness on foreign markets. Second, Belgium has a large number of SMEs for which the only source of competitive advantage often comes from their creativity and innovativeness. These intangible assets can be more efficiently exploited through a relevant IP management and enforcement. Third, as more companies place intellectual property strategy at the core of their business planning and management strategy, the countries that benefit from a more effective intellectual property system are able to attract more companies from all over the world and enjoy vigorous business activities and a more pronounced focus on innovation in general. Fourth, as patents always include the names of the inventors, their publication (available worldwide) constitute some sort of ‘technological’ reward and a clear recognition of an inventor’s creativity, which in itself constitute an incentive to invent further.

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The objective of this paper is to present the policy recommendations that were discussed during three brainstorming sessions on the use of the patent system in Belgium. The participants were representatives of universities, industry, patent attorneys and government institutions (both at the Federal and Regional level). The ultimate focus of the discussions was on how to improve the patenting culture in Belgium, and how to stimulate non-users (especially knowledge-generating institutions who should rely on the patent system) to effectively use the patent system. The discussions were based on three preliminary working assumptions:

 Improved access to the patent system, at lower costs, especially for SMEs, individuals or knowledge-generating institutions with no or little resources devoted to the protection of their intellectual assets (R1–R3).  Improving awareness through training on the intellectual property system in general and the patent system in particular (R4–R6).  Improving information on the intellectual property system in general and the patent system in particular (R7–R8).  Enforce visibility as a European actor, by contributing to a better and more integrated European patent system (R9–R10).

 The groups agreed that the discussions should not focus on whether the patent system is good or bad for society, and on whether some specific technologies should be part of patentable subject matters or not (e.g., stem cells or software inventions). It was explicitly assumed that the patent system works well, and that Belgian firms rely on the patent system much less than the firms in neighbouring countries.2 It was also clearly stated that ‘‘one size does not fit all”, as for some sectors or technologies (e.g., business methods or software) the patent system is perceived to be much less efficient.  It was also acknowledged that the patent system is part of a much broader and complex national innovation system. The policy recommendations below should therefore be complemented by – or integrated into – the broader design of an innovation policy, including support to the creation of new firms, R&D tax credits, subsidies, funding of public research, and education policy. Other intellectual property tools exist beside patents (trade secrets, copyrights, trademarks, designs) and must be considered as well.  It was also acknowledged that some of the following recommendations are already partly implemented by regional or federal institutions. This should not preclude to emphasize the need to develop further the scale and intensity of these recommendations, and communicate them as widely as possible. These recommendations were made because a majority of the participants felt that they were not or not sufficiently developed in Belgium.

The following four sections are devoted to each of these categories. Appendix F provides a list of the 10 recommendations and their sub-recommendations. Section 6 provides concluding remarks on the implementation and follow-up of these recommendations.

The paper is structured as follows. 10 broad recommendations (including one or several sub-recommendations) are listed and briefly described. They are grouped into four categories:

2 Discussions on the broad effectiveness of the patent system and the way it is designed can be found in Scotchmer [5], Jaffe and Lerner [6], Encaoua et al. [7] and Guellec and van Pottelsberghe [8]. van Pottelsberghe and van Zeebroeck [9] provide a first indication of the nearly constant decrease in the economic value of patent applications at the EPO since 1985.

2. An easier access to the patent system 2.1. Free/low-cost IP audit for SMEs (R1) It is well known that a large part of the innovative SMEs lack information or knowledge on the IP system and have a poor or no IP strategy. In addition, SMEs do not have sufficient time to attend training sessions. It is also generally acknowledged that the first patent is the hardest to get, as it clearly requires time and financial resources for a right that is not well understood and quite complex. Once a SME has applied for a patent, in general other patents follow. In order to stimulate SMEs to file their first patent, a free or low-cost IP-audit service could be offered. It would make them aware of the potential benefits induced by a sound protection of their intangible assets. An IP consultant would assess the extent to which firms could leverage various formal or informal tools to protect their intellectual assets (patents, trademarks, copyright, secrets, etc.). The service would last two to three days, and would end with a comprehensive report on the firm’s needs and how an IP policy could strengthen its market power and competitiveness. A methodology guide would identify the information that is likely to be included in an IP-audit together with good practices. The auditor would leverage information on the already existing services at the regional and federal levels. For instance, Belgium has nine PATLIB-centres (of which three are integrated in the ‘‘Centres De Groote”, collective research centres3) which spread information and support 3

The three PATLIB centres in the ‘‘Centres De Groote” are the ‘WTCB-CSTC (construction), the WTCM-CRIF (technological industry) and CENTEXBEL (textiles)’. According to Van Dooren [10] this industrial specialization is very efficient, as it induces an efficient followup of all aspects of the innovation process within a specific sector.

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for SME’s, individual inventors and academics on IP. In addition, the regions offer innovation-related services. Part of these services could be leveraged towards IP matters. The patent-related assessment could further rely on the national patent office services for the identification of prior art and general advice on patentability and patent drafting. A small cost could be requested in order to ensure a minimum level of motivation. The IP Audit service could learn from the French experience (see Appendix B), where it is provided for free. The French program was created in 2004 and an independent evaluation is currently being implemented. The preliminary results suggest a high effectiveness. Of a sample of 100 companies who used the services in 2005, 92% found it good or excellent and 80% had a better understanding of the value of IP for their company. 97% (of the 87 that answered the question) would recommend the IP pre-diagnosis to other companies. The French patent office (INPI) budgets the cost of one IP audit around 1500 EURO. If well run, this initiative would not only lead to more and better IP protection but also to internal organisational changes and awareness amongst the employees, including a better use of patent information (technology watch) in general. 2.2. Continuous support to – and governance of – universities’ IP policies (R2) University-based technology transfer offices (TTO’s) generally have relatively little resources and competences to ensure knowledge transfer through the creation of spin-offs and the filing of patents for academic inventions. If the Katholieke Universiteit Leuven has been active for more than three decades (cf. Debackere and Veugelers [11]), other universities in Belgium have gradually entered into active patenting over the past 15 years. Academic patenting has rapidly increased over the last decade (cf. van Pottelsberghe [12] and Sapsalis and van Pottelsberghe [13]), but the process is not yet fully accepted by academic researchers and the relatively young technology transfer offices (TTOs) still lack some specific competences and financial resources. Academic patenting is sometimes criticised on the ground that it may reduce the quality and quantity of academic research. To the best of our knowledge only some rare cases have witnessed a potentially negative impact of academic patenting. The literature on this field rather finds a virtuous relationship between academic patenting and scientific productivity (cf. the surveys of Geuna and Nesta [14], van Zeebroeck et al. [15], and van Pottelsberghe [12] and the Belgian-specific empirical evidence provided by Van Dierdonck et al. [16], Saragossi and van Pottelsberghe [17], Sapsalis and van Pottelsberghe [18], and van Looy et al. [19]). The recommendation is to continue to support financially the TTO’s in universities for the cost induced by (1) human resources (or wages); (2) the training of the TTO’s employees; and (3) the prosecution of patent applications

at an international level. At the same time this public money needs to be justified, and improved governance could be put in place regarding the direct and indirect economic effects of TTO activities, for both the university and the society. When possible, as economies of scale play an important role, ensure a merger or synergies between the TTO’s of medium sized institutions. 2.3. Reduce patenting costs (R3) Patenting is expensive. To file, prosecute and enforce a patent at the European level several costs have to be supported, including (see van Pottelsberghe and Francßois [20])4:  filing fees at the national patent office, filing fees at the EPO, search fees, examination fees, validation fees;  patent attorneys charge costs for the drafting and the prosecution of the application;  translation costs, according to the desired geographical scope for protection;  yearly renewal fees, according to the desired duration of protection in a given country. According to the simulations performed by van Pottelsberghe and Francßois [20], the total costs of a European patent may vary between 20,000 and 40,000 EURO, depending on the number of countries targeted for protection and other factors, such as the number of claims included in the patent. These costs are 6–12 times higher than in the US or Japan. For SMEs and universities, these high expected costs constitute a real disincentive to rely on the patent system, especially when the benefits induced by patent rights are not well understood and definitely not easy to capture. The current boom in patent applications at the EPO, USPTO Japanese or Chinese patent offices would rather call for increased patent fees, to reduce the demand for patents of low quality. However, as far as Belgium is concerned, it is the relatively low reliance on the patent system that is worrying. And the filing fees are relatively high in Belgium, especially in relative terms (per capita), as illustrated by de Rassenfosse and van Pottelsberghe [21].5 The forthcoming reduction in filing fees in Belgium, from about 900 to about 300 EUR, is therefore welcome. 4 It is possible to obtain patent protection in several or all of the EPC contracting states by going through the centralised EPO grant procedure. The European patent system becomes complex and costly just after the grant, when the patent must be validated, put in force, and renewed in each desired country, with its own legislation and its own fee structure (Guellec and van Pottelsberghe [8]). 5 cf. Appendix C for the fee structure at the Belgian patent office, and Appendix D for a comparison of cumulated fees at national patent offices, as reported by de Rassenfosse and van Pottelsberghe [21]. The authors provide graphical and econometric evidence that these fees, either in absolute or relative terms, do affect the number of priority filings at national patent offices.

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In this context of high costs associated with patenting (especially the costs of the services provided by patent attorneys and the cost of international expansion, the recommendation is to set up a (e.g., 20000-4500 EUR) voucher system for patent filing costs. This voucher would allow a firm to cover part of the patent attorney costs and of the administrative filing fees. This system has the advantage of being very flexible (low administration costs), and in order to avoid abuses (i.e., some inventions are not patentable or in some cases it is more relevant to keep the invention secret) the voucher could be conditioned to (or associated with) a preliminary IP Audit service (see R1). Alternatively, the voucher could be conditioned to a preliminary evaluation of patentability performed by the Belgian patent office. One could also introduce a real option system in which a first voucher compensate for the priority application in Belgium (e.g., 2000 EUR), and a second voucher which would compensate for the European and international phase (e.g., 2500 EUR). An additional action that can be undertaken is to lobby at the European level to reduce fees for SMEs (e.g., reduced filing fees and examination fees at the EPO for SMEs and universities, as it is already the case in the USA and in Japan). 3. Improve awareness through training 3.1. Adapt curricula of universities (R4) The large majority of participants pointed to the lack of IP-culture and IP-awareness in Belgium. There is also a shortage of experienced professionals and IP specialists, who combine a broad set of expertise and skills (basic patent law, scientific knowledge, business skills, IP strategy, patent economics). In this respect, it was nearly unanimously agreed that academic curricula should include (either create or increase) the teaching of basic IPR knowledge (including the various intellectual property rights that can be leveraged: trademarks, copyrights, etc.). For bachelor degrees and Master of Sciences programmes, students would learn that creativity is essential for themselves and for society in general. They should be aware that it is possible to protect their own creativity and potentially exploit it. All higher education students who graduate in engineering, sciences, business- or law studies and MBA students should ideally have a basic knowledge and understanding on IP rights and of their strengths and weaknesses. The following themes could be treated:  Intellectual property basics (e.g., copyright, patent practice),  Patents as a business tool; IP-strategies,  Patents as a source of information for research activities (e.g., learn to search in patent databases).  How to prepare for a patent application (do’s and do not’s),

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 IP valuation – economic side opportunity on the market,  Contract basics (in case of collaboration on IP). These courses could be spread over the bachelor and the master program (e.g., 24 h in the bachelor programmes with more theoretical courses and 24 h in the master programmes with more practical courses and case studies). A multidisciplinary Master in Intellectual Property management could also be created and involve the professors of various scientific disciplines, department and faculties. 3.2. Train academic researchers (R5) The awareness of the intellectual property system is generally very low in academic research environment. When an invention is made in an academic lab it is either directly published or left unknown. In addition, the weak knowledge of the patent system may lead to frustrations induced by misbehaviours of the researchers (they reveal the invention at informal seminars, or believe the patent is not expensive and not time consuming, or think that the financial return should be fast, have an upwardly biased perception of the value of their inventions – cf. Mathieu et al. [22]). The working groups suggested that IP Training should be offered to researchers in science-based Ph.D. programmes. There would be a 12–20 h training session with a brief introduction to the basic principles of intellectual property, followed by concrete training sessions along the following structure:  patents as a business tool; IP-strategies;  patents as a source of information for research activities (e.g., search patent databases);  how to prepare a patent application (do’s and do not’s);  IP valuation – economic side opportunity on the market. Patents could have an improved impact on the career opportunities of researchers, provided they are recognized as a scientific contribution in academic CVs. In this respect, the academic authorities could consider patents as publications, as the FNRS (National Fund for Scientific Research) already does. The idea here is not to consider that a patent is equivalent to a high level scientific publication, but to a local or domestic publication. 3.3. Short term intensive executive training for SMEs (R6) Small and medium sized firms do generally not devote sufficient time to IP issues, due to lack of time and resources. However, it is widely recognised that leveraging funds and export strategies can be strengthened with a relevant patent protection at home and abroad. In this respect, short term executive education programmes could be created (e.g., an IP management certificate) for SMEs (either 2–3 days or six evening courses).

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The courses should be practical and rely mainly on case studies, and could be given by experts in IP-practice who have experience in the field (patent attorneys, business people, TTO-managers, guest speakers from the European Patent Office). These training sessions would have clear networking potentials for entrepreneurs. 4. Improve information about the patent system 4.1. Centralise information on IP (R7) A problem frequently identified is related to the large information deficit (or highly fragmented information sources) regarding the IP system in general, including the available IP tools, the software tools that can be used for information retrieval, the available advisory services, and the training sessions offered by universities and specialized institutions. Those issues called for the creation of a flyer and a website dedicated to intellectual property. The website would be a portal site that provides information but also organises links to other IP-related sites) with basic information on:  IP strategies or other related strategies,  on patent procedures (patentability conditions, costs, etc.),  on patent information retrieval/analysis,  on patent valuation techniques. For each of the above topics, the website/flyer should provide the following information:  basic information illustrated by case studies  do’s and do not’s when applying for a patent  references to documents/websites where more detailed information can be found  an overview of the existing government support (federal, regional, local)  reference to contact-persons (federal, regional, local)  information on training possibilities This centralized information could be gathered and diffused by the Belgian patent office, in close collaboration with regional organisations. 4.2. Organise an ‘‘IP forum”, and a ‘‘Belgian Patent Prize” (R8) The general awareness of the intellectual property system, the effective exchange of ideas, and networking opportunities between IP professionals is relatively weak in Belgium, which is worsened by the very fragmented institutional R&D and innovation landscape. The creation of a nationwide IP Forum would bring together all actors dealing with innovation and IP in Belgium: the national patent office, relevant ministries and

government agencies, enterprises, social partners, TTO’s of universities and research centres, PATLIB-centres, IPconsultants, patent attorneys, patent lawyers and judges, from Belgium and from the neighbouring countries. The forum would aim at fostering the exchange of information and best practices and at suggesting improvements on IPpolicy. For instance, Japan has organised for several years a successful IP forum (see Appendix E) in which all institutional actors on IP were brought together. Meanwhile, the idea has been implemented by some member states of the EU, like the Czech Republic and Bulgaria. Several participants stressed that the IP forum should be open for a broad public, including large firms, small firms, students and researchers. The forum would function as a think thank and as high level conference, including stands and demonstration of patented inventions (1 or 2 days) with a few presentations and several working groups. A key event of the Patent Forum would be the celebration of a new Belgian Patent Prize for the most promising patented inventions. The prize would be offered by the government (Economic Ministry), possibly with a business partner, to congratulate an inventor for his/her creativity. A different technological field could be selected each year, and a panel of experts from academia and the business sector could gather to assess the submitted patents. The participation in the prize selection process may be conditional on substantial technological advance and/or high business opportunities, either through licensing or through the creation of a start-up. The patent prize would be a financial reward for the researcher(s) who invented it. Patents in general are a non-financial reward (or recognition) for the researchers who performed the invention, as their name is listed in the patent document. This prize would not only substantially improve the reputation of the inventor(s), it would further improve the visibility of the invention (and hence improve its probability to be exploited) and of the R&D laboratory (which can be within large firms, SMEs or universities). The Belgian patent office (which coordinates the recently created IP council and which would coordinate the IP portal) would be a good and relevant project leader for both the IP Forum and the Belgian Patent prize. 5. Enforce visibility as a European actor 5.1. An efficient patent litigation system (R9) IP-related litigations often involve companies from different countries, frequently cover several European markets, and often take place in other countries than Belgium. Some countries have a good reputation for their IP-litigation system (e.g., Germany, Great Britain, Switzerland and The Netherlands). The brainstorming sessions clearly outlined that Belgium was not a place recognised for its IP-related jurisdiction. On the contrary, the participants underlined a lack of infrastructure, legislation and

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specialised judges in the matter. This issue constitutes an evident drawback for the Belgian innovation system. Belgian firms, especially SMEs, have little knowledge of these litigation processes, and they face a competence and language gap when litigating abroad. In addition, having a competent and internationally recognised litigation system for patent infringement would substantially improve the international reputation of Belgium. So far there are no specialised judges in IP matters. In addition, there are five Commercial Courts in Belgium that are to be competent for IP matters from November 1, 2007 onwards. These Courts will replace the Courts of first instance.6 Three potential solutions have been raised. First, because of the relatively low number of cases, creating a special IP court may not be an option for Belgium. A centralisation of the IP-related litigations in one court is highly recommended (e.g., centralisation in the Commercial Court of Brussels). The few judges from the Civil Courts who have some experience in IP matters could be allowed to judge in a Commercial Court, according to the general provisions of the Judicial Code on mobility. The current system could be enhanced in order to authorise an ad hoc designation for experienced judges to sit in the panel of the commercial Courts having to hear an IP case. Second, in the Commercial Court(s) responsible for IP litigations, a special IP-chamber should be created, in which judges would be assisted by counsellors (rechters in handelszaken – juges consulaires) specialised in IP. These independent counsellors should have some technical or scientific backgrounds and a good knowledge of the patent system. Third, the judges dedicated to IP-related cases should be better trained on IP matters; informal exchange of information with judges of other countries (e.g., The Netherlands, Germany or Great Britain) and with EPO experts should be organised. This training should also be open for patent attorneys and counsellors and could be subject to a certificate. As infringement-related cases may be very expensive, mediation and arbitration should be formally added to the training programs. 5.2. Political support for the improvement of the EPS in general (R10) The patent system in Europe is highly fragmented, which leads to high costs of patenting and a complex system which is difficult to grasp for SMEs. The main European dimension that has been successfully implemented over the past 30 years is the European Patent, or a central-

6

Several new laws have recently been approved in Belgium, which substantially strengthens the enforcement of intellectual property rights: The law of the 10th of May 2007 related to the civilian aspects of IPR’s (MB – 10/05/2007 + erratum MB – 14/05/2007); the law of the 9th of May 2007 related to the judiciary aspects of IPRs (MB – 10/05/2007 + erratum MB – 14/05/2007); and the law of the 21st of April 2007 on the honorarium related to lawyers’ expenses (MB – 31/05/2007).

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ization of the search and examination process at the EPO (European Patent Office). Once the patent is granted by the EPO, it must be managed at the country level (i.e., validated, translated, pay the renewal fees, and be enforced). This situation led to a system highly criticized by the business sector, from small to large firms, both within and outside Europe. Three major issues related to the European patent system have been raised. First, the London Protocol, which aims at reducing translation costs, which has recently been ratified by France and but not yet by Belgium (as of November 2007). This protocol can be implemented if ratified by eight countries among which are the UK, France and Germany. Second, the EPLA, which aims at building a centralised litigation process for the member states of the European Union (i.e., the creation of a centralised European court), is still far from being implemented and ratified (at the moment multiple litigations are frequently occurring in Europe, for a given patent, sometimes with opposite outcomes).7 Third, it is difficult for SMEs all over Europe, not only to identify the patents they might infringe when developing their own business, but as well to find out whether a patent is still in force in one or several countries. Five actions have been identified, which would improve the international visibility of Belgium as a strong supporter to the European patent system:  Politically support the London Protocol outside Belgium and ratify it urgently.  Allow English as a patent language in Belgium, even for priority filings. This would stimulate local firms (especially in high-tech fields) to file their application first in Belgium, instead of filing directly in the UK or the US or the EPO, in English.  Politically support the implementation of a European patent litigation system based on the content of the drafted European Patent Litigation Agreement (EPLA).  Politically support the bodies that aim at an improved quality regarding patentability standards based on the recommendations listed in the STOA report [23].  Stimulate the creation of a ‘‘patents in force” database, possibly run by the EPO, that would automatically and easily show for each EPO granted patents whether they are in force in a given year and in a given country.

6. Concluding remarks on implementation It is important to keep in mind that a small number of recommendations are already in place to some extent, and/or may not look highly innovative. They were kept because the participants to the brainstorming sessions 7 The centralised litigation process may as well be created for all the member states of the European patent organisation (32 member states as of the 1st of September 2007). This may however prove difficult to implement as several countries are not part of the European union.

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strongly emphasized these recommendations as being not sufficiently deployed or implemented. On the other hand, some recommendations are much more innovative and were perceived as substantial source of impetus to Belgium and its IP system. The Patent Forum, the patent prize (proinnovation), English as the IP language in Belgium, and the voucher system were warmly emphasized in this respect. The three brainstorming sessions that lead to the 10 broad recommendations were creative in the sense that all ideas were welcome. A recommendation was kept in the report if it proved to be appealing for several participants in each of the three brainstorming sessions. This creative step is however only a first step towards concrete policy action, as each of them needs to be monitored and funded, not to say endorsed at the highest policy-making level. The monitoring may prove to be quite complex, especially when several social partners and different authorities are involved. Who is (are) the ‘project owner (s)’ and who funds it is not always straightforward. It appeared that a key success factor underlying each of the recommendation would be to have several social partners endorsing it. Table 1 summarizes a potential distribution of project ownership for each of the 10 recommendations. The Belgian Patent Office is logically involved in a majority of recommendations, but other actors prove very important as well. The IP forum recommendation could be designed in a way that would involve the various social partners, at both the regional and federal level, and stimulates IP-related dialogues between these partners. An important issue is induced be the financial resources required to implement these recommendations. Ideally the expected return to each policy should be put in perspective with its own deployment costs, so that those with the highest social return would be selected first or implemented with greater attention. However the cost–benefit analyses are quite complex to implement as the benefit of several recommendations are not straightforward to assess. Nevertheless evaluations of the economic benefits (or costs to society) of several of these policies are possible and may be required to assess their usefulness, especially when clear Table 1 Identification of required actors for each recommendation SP 1. Free/low-cost IP audit for SMEs 2. Support to universities’ IP policies 3. Reduce patenting costs 4. Adapt curricula of universities 5. Train academic researchers 6. Short term training for SMEs 7. Centralise information on IP 8. ‘‘IP forum”, and ‘‘Patent Prize” 9. Belgian litigation system 10. Improvement of the EPS

X X

BPO

RIS

X X X

X X

X X X X X

EU

Univ X X X X

X X X

SP, Social Partners, involving institutions at the regional and federal levels; BPO, Belgian Patent Office; RIS, Regional innovation support institutions; EU, Belgian representations involved in EU institutions and regulation; Univ., Universities and communities.

Table 2 Patent related fees in Belgium Type of fee

EUR

Filing of a patent application Request for priority rights Search fees Request for an international-type search Fees per corrected (or slightly modified) page of the patent application Notification for the partial or total selling (cession) of a patent application Notification of a licensed patent

50 12 887 6 12 12 12

Renewal fees Year

EUR

3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th 14th 15th 16th 17th 18th 19th 20th

30 45 60 75 90 110 130 150 170 190 220 250 285 320 355 395 435 475

Source: Belgian Patent office.

financial flows are involved. This is the case for the voucher system that aims at reducing the cost of filing a patent. Acknowledgements This article has been developed from a report entitled ‘‘Recommendations for the Belgian Patent Policy”, which summarised the results of several brainstorming sessions that took place in early June 2007. These sessions were organised on behalf of the Belgian Conseil Central de l’Economie (CCE) and where chaired by Bruno van Pottelsberghe, Chief Economist of the European Patent Office and Professor at The Universite´ Libre de Bruxelles (U.L.B.). The working groups aimed at finding policy recommendations to improve the effectiveness of the Belgian Patent system. The authors would like to thank the 40 specialists from business, academic and government (federal and regional) institutions, without whom this paper would have never been written. We are particularly grateful to Georg Artelsmaier (EPO), Denis Dambois (EC), Dominique Deberdt (French Patent Office), Wolfram Fo¨rster (EPO), Dominique Guellec (OECD) and Nikolaus Thumm (Swiss Patent Office). Special thanks are also dedicated to Gae´tan de Rassenfosse, Aze`le Mathieu and Nicolas van Zeebroeck, for their help and useful remarks on the effectiveness of patent systems.

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Appendix A. Number of priority filings by country of origin Fig. 1 in the main text presents the number of priority filings at each national patent office. This indicator may be biased as in some countries (including The Netherlands, Switzerland and Belgium) firms and inventors increasingly file their priority applications directly at the EPO (see the discussions on patent counts methodologies by Dernis et al. [24] and de Rassenfosse and van Pottelsberghe [21]). An alternative counting methodology would be to add to the number of domestic priority filings at national patent offices, the number of priority applications directly filed at the EPO but counted by the country of origin of the inventors. The results are illustrated in Fig. 2 here under. It clearly shows that, even with this improved measure, the number of patent applications per researcher is still worryingly low in Belgium.

   

317

preparation, visit of the SME (0.5 day), analysis, summary, drafting, presentation of a report within the company. This report describes the company activity and main products and projects, the environment in which the company is operating (customers, competitors, partnership, regulatory environment), company objectives, inventory of protection, main IP useful actions and competitive advantages. The appendices include procedures and costs of design, patent or mark protection and information about competitors from IP databases.

In France this service is offered by the French patent office (INPI) that finances IP consultants or generalist consultants with a good understanding of IP to do the audits. To identify/detect innovative SMEs, INPI relies on its vast network of 15 regional offices throughout France. Appendix C. Patent filing fees and renewal fees in Belgium

Appendix B. Description of the French IP Audit process The French IP-audit is a proactive policy in which IPspecialists visit innovative SMEs that do not use IP (especially patents) and who have problems identifying who does what in IP, their role and their mission. The IP-audit consists of evaluating what IP (intellectual property and the other means of acquiring rights to innovations and managing them, such as secrets, contracts and managing information flows) can bring to the company in realising its objectives while taking into account the overall context. A complete IP-audit lasts 1.5 days and is free of charge for the SME. It consists of:

As of the 1st of September 2007, the patent related fees in Belgium are summarized in Table 2: Appendix D. Cumulated filing fees and renewal fees in Belgium See Fig. 3. Appendix E. Description of the Japanese IP forum In Japan, a Strategic Council was set up in order to establish a national strategy for intellectual property and

Corrected priority filings per researcher

0.20

0.15

0.10

0.05

0 PT IN TR SK SG ES MX GR BE IE CA PL FI DK RU NO AT CN NL BR SE FR IT ZA CH GB US JP AU DE Fig. 2. Corrected priority filings per researcher, 2003. The corrected number of ‘‘national” priority filings per researcher (PR) in 2003 is composed of first filings at national patent offices (NPO PR) and priority filings at EPO (EPO PR) having a national inventor as the first inventor. PF at JPO have been divided by 3. Source and methodology: de Rassenfosse and van Pottelsberghe [21], computed from PatStat April 2007 edition and UNESCO Institute for Statistics.

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B. van Pottelsberghe de la Potterie et al. / World Patent Information 30 (2008) 309–319

Fig. 3. Patenting fees up to the grant, 2003. Source: Adapted from de Rassenfosse and van Pottelsberghe [21]. Cumulated fees, from the filing fee to the grant fee.

to powerfully advance the necessary policies. The Council is a permanent body which consists of the Prime Minister (chair), all the Cabinet Ministers and 10 experts coming from academia and industry (3 CEOs). The Prime Minister gives instructions for action to relevant Ministers and ensures that all Ministries concerned take timely followup action. In July 2003, the IP Strategic Headquarters presented the first action plan: the IP Strategic Program. It contained 270 items of measures to be implemented by the ministries and agencies concerned and resulted, so far, in more than 40 laws passed by the Japanese Parliament. A lengthy action plan is under preparation for the 2007 Program. The ultimate goal is to make Japan an ‘intellectual property-based nation’. This goal will not be achieved unless the general public shares the understanding of such a goal. Consequently, the Council asks for public opinion regularly and also holds explanatory meetings and symposia on intellectual property strategy at various locations.

R4.

R5.

R6. R7.

R8.

Appendix F. In summary: recommendations and subrecommendations R1. Free/low-cost IP audit for SMEs. R2. Continuous support to – and governance of – universities’ IP policies:  provide human resources to TTOs,  support the training of TTOs employees,  provide financial assistance to support the cost of patent filings,  stimulate mergers to allow TTOs to reach a minimum economy of scale. R3. Reduce patenting costs:

R9.

R10.

 set up a voucher system to cover the costs of first filings for SMEs,  lobby at the European level to reduce fees for SMEs. Adapt curricula of universities:  create the teaching of basic IPR in academic curricula,  stimulate the creation of multidisciplinary master in IP management. Train academic researchers:  offer IP training for researchers in science-based programmes,  improve the recognition of patents as scientific contributions. Short term intensive executive training for SMEs. Centralise information on IP:  create a flyer and a website with basic information on events and trainings. organise an ‘‘IP forum”, and a ‘‘Belgian Patent Prize”:  create a nation-wide IP forum,  create a yearly ‘‘Belgian patent prize”. An efficient Belgian litigation system:  centralise IP-related litigations in one court (special IP chamber),  improve (or require) the training of dedicated judges and lawyers. Political support for the improvement of the EPS in general:  politically support (and ratify) the London Protocol,  allow English as a patent language in Belgium,

B. van Pottelsberghe de la Potterie et al. / World Patent Information 30 (2008) 309–319

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Bruno van Pottelsberghe is Professor at the Universite´ Libre de Bruxelles (U.L.B.), where he holds the Solvay S.A. Chair of Innovation (Solvay Business School, CEB) and teaches courses on the economics and management of innovation and intellectual property. The present paper was written when he was Chief Economist of the European Patent Office (EPO, Nov. 2005 to Nov. 2007). Author of numerous scientific articles in the fields of innovation and patent economics, he has recently published a book at Oxford University Press, jointly authored with Dominique Guellec (OECD), and entitled: ‘‘The Economics of the European Patent System”. Bruno van Pottelsberghe is advisor to the ULB authorities for knowledge transfer issues. He is member of the ECORE research center (ULB–UCL), research fellow at BRUEGEL and member of CEPR, London. Siska Vandecandelaere graduated as Master of Science in Economics at the Catholic University of Leuven. Since 2005 she works for the Belgian Conseil Central de l’Economie, a consultation and advisory body of the Belgian federal social partners. There she follows the topics R&D and innovation with a special focus on IP and industry–science links.

Emmanuel de Be´thune graduated as MBA at the Vlerick Leuven Gent Management School. Since 2003 he works for the Belgian Conseil Central de l’Economie, a consultation and advisory body of the Belgian federal social partners. His working field is ‘structural competitiveness’ with a focus on R&D and innovation.