Proceedings of the 3rd European Conference on Intellectual Capital

The Global Position <strong>of</strong> <strong>the</strong> <strong>European</strong> Patent Office (EPO):
Is Europe Capable <strong>of</strong> Protecting its Intellectual Capital
Effectively?
Piotr Wisniewski
Warsaw School <strong>of</strong> Economics, Poland
piotr.wisniewski@sgh.waw.pl
Abstract: The competitiveness <strong>of</strong> <strong>European</strong> intellectual capital (IC) and intellectual property (IP) stems from a
conjuncture <strong>of</strong> contemporary tendencies that are not easily manageable: socioeconomic and technological
dynamism <strong>of</strong> Eastern Asian economies vs. stagnation in Europe, complexity <strong>of</strong> innovation spillovers between
developed and emerging markets, as well as o<strong>the</strong>r geostrategic trends. Despite pressing challenges, Europe has
not yet succeeded in developing a seamless regime <strong>of</strong> protecting its intellectual base. Although <strong>the</strong> <strong>European</strong>
Patent Office (EPO) <strong>of</strong>fers a reasonably convenient route for IP registration, enforcement <strong>of</strong> EPO decisions is still
consigned to individual <strong>European</strong> jurisdictions. The sluggish pace <strong>of</strong> innovation in Europe in recent years has
been blamed on a great deal <strong>of</strong> contributing factors – limited functionality <strong>of</strong> Europe-wide patenting is certainly
one <strong>of</strong> <strong>the</strong>m.
Keywords: intellectual capital vs. intellectual property, <strong>European</strong> Patent Office’s position, global protection and
diffusion <strong>of</strong> intellectual property, single EU patent, international innovation
1. Intellectual property vs. intellectual capital
Intellectual property (IP) is a concept embracing “creations <strong>of</strong> <strong>the</strong> human mind: inventions, literary and
artistic works, and symbols, names, images, and designs used in commerce” – according to <strong>the</strong>
World Intellectual Property Organization (WIPO) – (WIPO 2010a). IP is protected to reward <strong>the</strong> efforts
<strong>of</strong> innovators, just like o<strong>the</strong>r forms <strong>of</strong> entrepreneurial activity. IP protection serves ano<strong>the</strong>r social goal
– it is expected to stimulate innovation, as potential inventors are incentivized by commercial factors.
The first international law governing <strong>the</strong> use <strong>of</strong> IP (adopted as <strong>the</strong> Convention Establishing <strong>the</strong> WIPO
in Paris in 1967) failed to define IP explicitly, yet it cataloged <strong>the</strong> following rights associated with IP
(WIPO 1967), i.e.:
Literary, artistic and scientific works,
Performances <strong>of</strong> performing artists, phonograms, and broadcasts,
Inventions in all fields <strong>of</strong> human endeavor,
Scientific discoveries,
Industrial designs,
Trademarks, service marks, and commercial names and designations,
Protection against unfair competition,
All o<strong>the</strong>r rights resulting from intellectual activity in <strong>the</strong> industrial, scientific, literary or artistic fields
(WIPO 1967).
From <strong>the</strong> current perspective, IP can be classed as industrial property and copyright. Industrial
property connotes commercial application <strong>of</strong> innovative activity, whereas copyright is usually
associated with artistic expression.
Industrial property can take numerous forms. These include patents (to protect inventions), and
industrial designs (es<strong>the</strong>tic creations determining <strong>the</strong> appearance <strong>of</strong> industrial products). Industrial
property also encompasses trademarks, service marks, layout designs <strong>of</strong> integrated circuits,
commercial names and designations, as well as geographical indications, and o<strong>the</strong>r forms <strong>of</strong>
protection against unfair competition (WIPO 2010a).
Copyright is a form <strong>of</strong> protecting artistic creations, e.g. literary and artistic works such as novels,
poems and plays, films, musical compositions, drawings, paintings, photographs and sculptures,
architectural designs and a growing array <strong>of</strong> information technology applications, such as computer
s<strong>of</strong>tware or electronic databases. The right to copy such artistic creations is reserved to <strong>the</strong>ir
author(s), hence <strong>the</strong> origin <strong>of</strong> <strong>the</strong> term. Rights related to copyright include those <strong>of</strong> performing artists
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