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Friday, March 12, 2004

EPO (unfriendly?) take-over by EU cancelled?

There is another aspect of yesterday's failure to reach an agreement on the EU Community Patent in the Council which should not be overlooked.

The EU Community Patent would have been installed by means of a formal accession of the

European Community (EC) as a contracting party to the to the

European Patent Convention (EPC). To this end, the EPC would have been modified e.g. according to provisions proposed with

Document 14551/03. Effectively, the EU would have aquired voting right in any future Diplomatic Conference for a revision of the EPC (

Article 172 EPC) as well as in the Administrative Council (

Article 4 No. 2 lit. b EPC). So far, the EC would have been one contract party to the EPC amongst many others. However, there is a certain 'trick' on the basis of Article 11 Sect. 2 of the

Treaty on the European Union:

"[...] The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.

The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.

The Council shall ensure that these principles are complied with. [...]"

Hence, in the effect the EU would have been in a position to dominate any Diplomatic Conference as well as the Administrative Council because of the other EU Member States would have not been allowed to depart from the Official EU policy. So, the project of a EU Community Patent ever was to a certain degree a plan for something like an (unfriendly?) take-over of the European Patent Organisation and, hence, of the European Patent Office (EPO) by the EU.

I do not have any privileged knowledge from inside the EPO but I would not be very much surprised if today some of its Officials have received the news from the collapse of the Council deliberations on the Community Patent with some relief.

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