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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