News special: Our talk with Patrick Le Fevre of Ericsson elucidates the European perspective on U.S. patent law reform
Manhasset, NY—U.S. patent reform is the talk of all Europe as power supply manufacturers anxiously wait to see what comes from the recent passage of U.S. House Bill HR1908. They've been cautious, curious, disappointed, and baffled by U.S. patent law for years; yet, they're optimistic that a universal solution is not too far away. We caught up with Patrick Le Fèvre of Ericsson to tell us about what the Europeans are thinking and expecting in the near term.
PMDL: What accounts for such recent interest in Europe over patent law reform as it relates to the power supply and power management industry?
PL: Protecting intellectual property is very important and crucial for companies, and European manufacturers are very interested in U.S. patent reform because it represents an opportunity to harmonize patent processes to a level beyond what they are today.
Maybe the interest is magnified because, historically, the power industry has been mostly driven by engineers sharing the same passions, ways of working, and common interests. But unlike the semiconductor industry, the power industry has been relatively slow to adopt a business model based on a wide-ranging patenting concept.
Taking a page from the semiconductor industry, Vicor was the first power-supply company to introduce a new way of dealing with patents. Protecting intellectual property for manufacturing techniques, topologies, mechanical form factor, and so on, Vicor introduced a real change in the way companies developed and marketed their products.
We all remember the interesting debates surrounding the "active clamp" and how the patents related to such
topologies would ultimately affect new product design. But the situation is more serious and complicated today. Over the last two years, the number of cases brought to court, or solved by commercial, or/and licensing agreements have significantly increased, a sure sign the issue of lawsuits and patent infringement has intensified.
PMDL: What specific intellectual property is involved, and how does that affect the major European players, such as Ericsson?
PL: For sure the cases of patent infringement between Power-One and Artesyn or, recently, SynQor and a number of DC/DC manufacturers, are fueling the debates. But since Ericsson does not believe that its products directly infringe any valid claim of a Power-One or SynQor patent, I cannot make any statements on litigation to which Ericsson is not a party. However, beyond those two specific cases, a growing number of cases (not all echoed by the press or company press releases) warning of possible U.S. patent infringement have been reported by several European power supply makers. They're very concerned by the increased number of generic patents filed under the U.S. patent system.
European companies are as well protecting their intellectual property in Europe and in the rest of the world. But over the last three years, the situation with a congested U.S. patent system has made the patent filing process more difficult. The increase in the number of certain U.S. patents that address very generic ideas add complexity to the overall process.
Ericsson and other European power supply manufacturers are taking the proper measures to protect our intellectual property without infringing on others. But various new technologies in today's power systems bring on an increased level of complexity both technically and legally.
PMDL: What's the problem?
PL: As it has been for other segments such as software, the increase of generic patents covering broader areas tends to complicate everything.
We should remember what happened in the software industry and the situation designers faced when developing new software. An article published by The Free Software Foundation Inc. summarizes the situation thusly: "Even an innovative program typically uses dozens of not-quite-new techniques and features, each of which might have been patented. Our ability to use each wrinkle will depend on luck, and if we are unlucky half the time, few programs will escape infringing a large number of patents. Navigating the maze of patents will be harder than writing software."
With the increased number of generic patents recently filed in the power supply arena, the power industry is taking the same dangerous route as the software industry took a couple of years ago. Unfortunately, unlike the software industry the power industry is very fragmented, and doesn't have leading players to promote the "open source" concept. Future developments might become very difficult, and risky for start-ups and small companies not having the resources or financial muscle to sustain costs created by such a situation. Patent reform is seen by those companies as a hope that things will not evolve too far in the wrong direction.
PMDL: How does the European community view the U.S. patent process in general?
PL: In Europe, the U.S. patent system has always been viewed with a certain amount of caution and curiosity. For example, the U.S. is one of the few countries in the world that applies a 'first to invent' standard for awarding patents, whereas other countries apply a 'first to file' standard. This difference has been the subject of many articles and it's significant when considering globalization and how the rest of the world goes about awarding patents.
Another interesting situation concerns the software, and biomedical and Internet industries, just to name a few. They're saying there's evidence that the U.S. patent system has been used in a way that has diverted it from the original intention to protect 'inventors' and their 'inventions.' And it's resulting in a broad range of patent applications that seek to patent basic fundamental concepts rather than real inventions.
Every system has faults but, historically, for people following patent law, there are some cases they can't forget. We should not forget, for example, the historic case taught in law school about how in the 1880s Meucci lost to Bell in filing the patent for the telephone.
It was a long time ago, and little information was printed or recorded by lawyers at that time, but history tells us that Bell loosely constructed his patent papers and filed them just a few hours before Meucci filed his application. Some history experts are very often led to believe that Bell was 'tipped off' by someone in the patent office or at least someone close to them.
The trial started in June 1885 and ended in November 1897 with neither winners nor losers. Since then, hundreds of articles, papers, and researches have been conducted to probe this case, and it was only in June 2002 that U.S. House Resolution No. 269, which was passed, acknowledged the primacy of Antonio Meucci in the invention of the telephone.
Some could argue the Meucci case is about bad practices and behavior that occur in an extremely minor number of cases. There are others, though. Gordon Gould sketched something he described as a LASER. It was probably not fair that two other researchers were awarded the basic patent instead of Gould, who by mistake or misunderstanding of the filing process postponed his application because he believed a working prototype was mandatory before he could apply.
Luckily for Gould, it has taken less time for the Federal courts to investigate the case and legitimatize Gould's invention. But similar cases often fuel such debates. While these are just two examples of many, these cases rather give you an idea of all the things that can go wrong for the original inventors.
PMDL: So, in summary, how does Europe view the reform movement?
PL: At a time the European Parliament agrees to the "Patent Reform Plan" with some amendments, U.S. patent reform is seen as a very positive move to make it easier for companies to harmonize the ways of working when filing patents in The Trilateral Offices: the European Patent Office (EPO), the United States Patent and Trademark Office (USPTO), and the Japan Patent Office (JPO).
But there are growing concerns about patent infringement from expanding countries, and the number of companies moving R&D centers close to far-East customers and clients. One concern is how fast and how far the reform will go.