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Monday, November 10, 2003

EPO quality control division to come together with EU Community Patent.

The EU Council has just published some

Document No. 14068/03 concerning the "Revision of the European Patent Convention - Articles 153 to 178 and proposed new Article on the Protocol on Centralisation". Why has the EU any power to deal with particulars of the European Patent Convention? So, in fact, if the project of a

EU Community Patent should

ever become reality, the EU would accede to the EPC. And, in this context,

various amendments would have to be made with regard to the EPC in the course of another

Diplomatic Conference. In particular, with regard to

Article 15 of the Convention describing the overall structure of the European Patent Office, interesting changes are on the horizon.

The interesting point and the reason why I am dwelling on that matter is the fact that obviously the EU Council is actually mooting to create a "EPO quality control division". A proposed new Article 18a EPC says in detail:

Article 18a (inserted)
Quality control division
(1) The quality control division shall be responsible for:

a) examining, on its own initiative or upon request, the quality of the work being undertaken by the European Patent Office and by the central industrial property offices which intervene in the granting procedure of european patent applications, including european patent applications designating the European Community;

b) giving recommendations on all questions relating to the definition of an assurance scheme for a uniform quality of the work in respect of the processing of patent applications;

c) implementing the assurance scheme for a uniform quality with the cooperation of the European Patent Office and the national industrial property offices concerned.

The quality control division shall consist of independent members. These members shall be appointed for a term of five years by decision of the Administrative council on a proposal from the President of the European Patent Office. They cannot be removed from their functions during this period, except if there are serious grounds and if the Administrative council, on a proposal from his president, takes a decision to this effect.

The members of the quality control division may not be members of the Receiving Section, Examining Divisions, Opposition Divisions, Administration Division for the Community patent, Boards of Appeal, Enlarged Board of Appeal or of the Legal Division.

In their decisions and reports, the members of the quality control division shall not be bound by any instructions and shall comply only with the provisions of this Convention.

(2) Every year, the quality control division reports to the Administrative council on the execution of its mission and on the results of the quality controls which it carried out or made carry out. It can recommend the Administrative council to adopt preventive or corrective measures in order to guarantee a uniform quality of the patents granted by the European Patent Office. The Administrative council examines in all cases these recommendations and takes if necessary a decision pursuant to section IVb of the Protocol on centralization.

(3) At the occasion of the presentation of the annual report referred to in the preceding paragraph, the quality control division can present to the Administrative council a proposal for preventive or corrective measures. The Administrative council decides on this proposal at the qualified majority, after having heard the European Patent Office or the central industrial property office concerned. The Administrative council may propose amendments to the proposal presented.

If the quality control division approves the amendments suggested by the Administrative council, this last adopts the measures proposed.

In other cases, the proposal is submitted to a conciliation committee whose mission is to reach, within a period of time set by the administrative council, a common agreement on preventive or corrective measures. If the conciliation committee does not present a common proposal, the administrative council takes note of the proposal of the quality control division but this one does not produce any effect.

(4) The quality control division can, however, if it considers it necessary for the proper functioning of the european patent system based on the Convention, and after consultation of the Administrative council, impose preventive or corrective measures on any interested party if the results of the controls carried out with regard to this interested party are similar for a three consecutive years period of time and if the proposals relating to such measures have not been the subject of an agreement within the Administrative council under the terms of the preceding paragraph.

I have got the impression that these very far-reaching provisions are to be seen - at least in part - as a response to some criticism uttered by persons from

academia as well as by NGOs, both arguing that major patent offices and, inter alia, also the EPO are issuing too many of the so-called "trivial patents" for which the requirements of novelty and/or inventive step have not been scrutinised sufficiently. The EU Council surely is on the right track here, in particular because of the exhibition of a political intention to make clear, contrary to the

position of the FFII e.V., that the problem of "trivial patents" is of patent examination, not of patent law in general.

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