Wednesday, 18 June 2014

9 Points on Differences Between Europe and the US Relevant to Patents and Biotech Innovation

These points are a collation of our thoughts on the differences between Europe and US relevant to innovation and patent law development. Some of the points are more relevant to biotech which is our specialist area. It is not the purpose of this post to list the specific differences in patent practice between the two territories.  We realise that some of the points listed below are speculative, coming from ‘anecdotal’ experience.  Partly this is because it is difficult to see what the situation is in Europe in particular areas due to lack of data collection and analysis.

1. Despite the European Union (EU), members of the EU remain very much individual economies, with national boundaries impacting on IP matters and potentially hindering innovation. In contrast the US is a single economy with central institutions for granting and enforcing patents. The sheer size of the US means that larger institutions, companies and ecosystems can come into existence.

2. The US is more developed in many economic areas. For biotech the venture capital system is much more developed. It is larger in terms of the amounts invested and also seems to have more expertise in dealing with the complexity of funding early stage biotech research.

3. It could be argued that the European patent system is not yet complete in that the Unitary Patent and the Unified Patent Court have not yet come into existence. Looking at the existing systems it is of course difficult to see how well the European and US patent systems are doing compared to each other. Given the impact of recent US Supreme Court decisions and the number of different bills that have been proposed to deal with the problem of patent trolls, the US system certainly seems to be changing rapidly and is arguably more responsive.

4. It seems to us that the US patent system is more open to different ideas and perspectives, including lobbying, at the level of law-making, USPTO practice and Court decisions.

5. The US in general is a place with a higher level of level of experimentalism.  There are more ideas and more organisations experimenting, including think tanks, companies and universities. The Federal System itself allows experimenting with democracy and law-making which central government can see the results of and learn from.

6. In our opinion the US remains more capable of developing innovation ecosystems. In addition we speculate that collaborations are much easier to set up without the complexity of national boundaries.  US research also tends to have a more ‘visionary’ approach which seems to focus it and give it momentum.

7. We would propose that in the US there is a higher level of ‘conversation’ happening in the areas of patent law development, funding of innovation and R&D strategies. Certainly there are more high quality blogs reporting and commenting on these areas. We would also propose that US institutions and corporations are more exposed to this ‘conversation’ allowing them to potentially be better decision-makers.

8. There seems to be a higher level of academic study of innovation and IP in the US, in terms of published articles and books. Academics also seem to participate more in policy arguments.

9. It must be pointed out that the economies of Germany, the UK and the US are comparable in productivity terms, and so the performance of the economies per se of these countries are not responsible for the differences we have mentioned.

You may also wish to see related articles How is Biotech Patenting Different? and 10 Patenting Scenarios.

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