BIO Deutschland Attends a Meeting on “Trivial Patents” at the Federal Ministry of Economics and Technology

On 22 March 2007, a meeting on “trivial patents” was held at the Federal Ministry of Economics and Technology. BIO Deutschland took part in this meeting, where it was represented by Dr Martin Pöhlchen, a member of the Working Group on Intellectual Property and Technical Contracts and Managing Director of MAPO GmbH. As well as other representatives from trade and industry, the European and the German Patent Offices and the Federal Ministry of Justice, which is responsible for patent law, also attended the meeting.

The topic is of current relevance because the view has recently been expressed that in practice, the requirement of the “size of the invention” by the Patent Offices and patent courts has not been sufficiently implemented. The result is an increasing number of so-called trivial patents. In its invitation to the meeting, the Ministry of Economics and Technology wrote that companies no longer seek patents in order to protect their own inventions from use by other parties but primarily for strategic reasons – be they aggressive, obstructing competitors by accusing them of abusing their patents, or defensive, in that companies compile a portfolio of patents in order to be able to hold patent abuse against their competitors or to conclude cross-licensing contracts with them from the outset. While the negative effects of this strategic patent application filling conduct can be kept in check for those who hold portfolios of patents, the existence of this “patent tangle” can be a great hindrance to new companies on the market who do not yet have their own patents. This is of particular significance in sectors where individual inventions or developments build upon one another. This type of development in the USA was described in the report “To Promote Innovation” by the Federal Trade Commission in 2003 (www.ftc.gov/os/2003/10/innovationrpt.pdf).

In the discussion, BIO Deutschland made clear that it does not believe that an amendment of the patent law regulations on the assessment of the size of an invention is necessary at either the national or the European level. It cannot be confirmed that a fundamental danger to the biotechnology sector is posed by the awarding of so-called trivial patents. At most, further steps for the improvement of quality control at the German Patent and Trademark Office and the European Patent Office should be considered and these are already in hand internally in these organisations.