Minister of Economic Affairs and Infrastructure Erkki Keldo (Reform) has made comments to the media suggesting the possibility of merging Estonia's Patent Office with the EIS.

"We have the Patent Office, and meanwhile we also have the Estonian Business and Innovation Agency (EIS)," Keldo told ERR in an interview on March 20. "When we talk about producing higher value-added products and services, a very important part of that is patents. At the same time, we see that we have the EIS, whose role should be, in cooperation with business owners, to provide an environment where there are opportunities for innovation, new intellectual property and patents. This would be one concrete example of where costs could be saved, but efficiency could be increased as well."

"The premise behind this idea seems to be the understanding that the Patent Office as a government institution and the EIS as a private legal entity perform a similar function," Must and Sehver said in a joint letter.

The two Chamber of Patent Attorneys representatives added that when considering the roles of the Patent Office and the EIS, it's necessary to distinguish their primary functions from their additional supporting functions.

"The primary function of the Patent Office is the exercise of governmental authority," they noted. "By government authority, we mean making binding decisions regarding third parties, which involves granting exclusive rights to applicants through the registration of industrial property, such as trademarks, patents, utility models and industrial designs. Such a decision benefits the applicant and obligates all other parties."

The Board of Appeals within the Patent Office, as a pretrial dispute resolution body, likewise makes binding decisions, they continued.

"Since the Patent Office exercises governmental authority, it thus fulfills a core function of the state," Must and Sehver pointed out. "This raises the question of whether there is a serious plan to transfer core state functions to a foundation as a private legal entity, and what exactly the cost savings would be. Leaving the legal aspect aside, the EIS has never performed such functions, and lacks the necessary competence [to do so], which means there is no redundancy in functions."

They pointed out that by joining the Paris Convention for the Protection of Industrial Property, Estonia undertook an obligation under Article 12 to establish a special office for industrial property rights.

'No need for state to compete with private sector'

The chamber representatives added that when considering where the work of the Patent Office and the EIS align, it is in the so-called additional supporting function, which involves informing and advising business owners about intellectual property.

"The Patent Office's development plan for the years 2021-2025, approved by the Ministry of Justice, envisions consolidating general intellectual property information and advisory services within the Patent Office, which, given the Patent Office's practical experience and competence, makes perfect sense for awareness-building efforts and improving business owners' awareness," they said. "However, the Patent Office's 'free consultations' as well as the EIS' industrial property-related consultations are an unreasonable use of taxpayers' money, and constitute unfair competition to private sector services."

Must and Sehver emphasized that in specific matters concerning intellectual property, the private sector has sufficient competence in the form of qualified patent attorneys, and that there are various measures in place to cover the associated costs for medium-sized and small enterprises.

"Therefore, there is actually no need for the state to compete with the private sector in advising business owners on intellectual property and to create unnecessary costs for the state," they concluded. "Nor can the significant risk of a conflict of interest be overlooked if the same agency serves as both the initial adviser, the subsequent rights-granting authority and, ultimately, the pretrial dispute resolver."

Must and Sehver added that the Chamber of Patent Attorneys welcomes the goal of keeping state costs in check, and is prepared to participate in discussions as a representative of the relevant field and propose cost-saving measures, but stressed that Estonia must prioritize adhering to the principles that underlie its legal system.

The Chamber of Patent Attorneys is a public legal entity that represents all patent attorneys in Estonia, who provide legal services in industrial property.

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