A consultation process among the member states of the European Patent Organisation is currently taking place. The March 2006 meeting of the Administrative Council will give the Council the opportunity to mandate the European Patent Office to prepare a 'strategy package' that could be adopted by June 2006.
The enlarged debate needs to be conducted in an open and transparent manner. To this end, the Council Chairman is making the documents under discussion available to the interested public and to the numerous parties involved in the process (see Documentation).
To facilitate the broadest possible consultation, the Council Secretariat has set up the following address for those who wish to submit their views:
Submissions should be in electronic form only and in one or more of the Organisation's official languages (English, French and German). In submitting their views in this way, the contributors authorise the Organisation to publish them on this site and to refer to the source. They also accept that the Organisation reserves the right not to publish every contribution.
The delegations behind this document are of the opinion that it is both possible and necessary to start assembling the elements needed to build a network of cooperating patent offices in Europe. The principles and suggestions in this document show a possible way forward in this respect. We invite the Office and all Member States to a constructive dialogue and cooperation in order to develop this matter further and in more concrete terms."
All of them represent "smaller" countries, no one of the "big three" (DE, UK, FR) appears to be in the boat. The group refers to Document CA/94/05 dated May 31, 2005, and titled "Joint statement on the European patent network" saying:
"[...]Madrid, 26th 2005
Delegates from Austria, Denmark, France, Germany, Hungary, The Netherlands, Portugal, Slovenia, Spain and the United Kingdom, as members of the informal Council's Working Group met in Amsterdam on April 22, 2005 and Madrid on May 26, 2005.
Main focus point of this meeting was the strategic debate on co-operation between EPO and National Offices together in the European Patent Network. The delegates discussed the following principles and facts and agreed among themselves as follows:
1. The European Patent Office's (hereinafter, the EPO) specific role as the sole European Authority for granting European Patents must be maintained and reinforced. However, the delegates shared their concerns about the functioning of the EPO. These concerns are: EPO's financial situation, decreasing productivity, cost-effectiveness, functioning of MAC, quality of patents and patent examination, present lack of timeliness and high cost of patents.
2. The participants, bearing in mind the magnitude of these problems are of the opinion that EPO should concentrate itself on its core business e.g. patent granting. It should decrease its expanding involvement in training and education activities for third parties as well as in promotion and marketing business. These activities divert EPO from its key role and impacts the role of the National Patent Offices (hereinafter, NPOs) negatively. To optimize the proper functioning of the patent system in Europe and to increase its competitiveness a closer co-operation is necessary between the National Offices and the EPO. To summarize this, EPO should: a. Stick to its core business. b. Recognize and accept the specific responsibility of the NPOs c. Recognize and accept NPO?s role as part of the overall patent network. d. Accept and obey the principle of subsidiarity in relation to the contribution of the NPOs.
3. The European Patent Convention together with the Protocol on Centralization are the backbones of the Organization. They should stay unchanged. However, this does not impede future adaptations.
4. The participants also emphasized that the political role of the AC should be strengthened and the AC should concentrate its work on the above mentioned strategic issues. Also EPO?s role in the trilateral discussions requires additional attention of the AC.
5. To reach the Lisbon goals EPO together with the NPOs have to co-operate as much as possible. They together can contribute a lot to reach this goal by taking advantage of each others competences and to avoid duplication of work as much as possible.
6. The network model could be based on the following interlinked principles: a. Free choice for applicants. b. No compulsory outsourcing c. No automatic utilization by EPO of the work of NPOs d. Equal Treatment of all member States e. Introduction and assurance of equal quality standards.
[...]"
Now, the smaller group of Delgations concludes:
"[...] The above delegations reaffirm their desire to have the political agreement expressed in CA/94/05 turned into practical implementation. We also consider that CA/128/05 does not provide the proposals in this respect which the Council has asked for. Furthermore, CA/128/05 draws conclusions which in our view are based on wrong or incomplete premises. Details in support of our view can be found in documents CA/5/06 and CA/6/06. The comments in these documents are summarized below:
- CA/128/05 seems to reduce the benefits of cooperation to a minimum. This is particularly true for Annex 3 to CA/128/05, where the Office, instead of submitting a proposal, has put forward a number of arguments against the ideas expressed in CA/94/05. We find that there are indeed several possibilities for the Member States Offices to cooperate closely with the EPO in order to increase effectiveness within the Organisation.
- The Convention contains two fundamental provisions, namely, that the Office is supervised by the Council, and that the President of the Office is responsible for its activities to the Council. With reference to CA/94/05, this implies that the Council takes the main decision on outsourcing and the criteria to be applied and the Office reports to the Council on the implementation.
- The strategy debate is conducted between states and not between offices. Blurring these lines can conceal that, under the present EPC legal framework, the political control of the European Patent Organisation lies with the Contracting States. In addition, we continue to subscribe to the relevant passage in CA/94/05 on the European patent network concerning the role of the Council: 'the political role of the AC should be strengthened and the AC should concentrate its work on 'strategic issues''.
- Contracting states have retained their competence to grant national patents for their own territories. Therefore, the EPC is based on the co-existence of European patents with national patents, and presupposes a certain interaction between the EPC and national laws as well as the European Patent Office and the national patent institutions.
- The reference in CA/128/05 to the work done in the NPOs is a poor and depreciative description of what is performed by many NPOs and not in accordance with facts.
- Further, the Office generally seems to consider existing procedures and standards as obstacles instead of looking at possibilities for amending or revising them in order to accommodate the objective of making use of work carried out by the NPOs. An example of this is the difficulties and debate which have resulted from the Office?s inflexible and in our view also wrong interpretation of written opinions. It is thus necessary for the Office to take account of the written opinions produced by NPOs on patentability if duplication of work as expressed by the Council is to be avoided.
- Under the scheme proposed in CA/61/05, any concerns about 'sovereignty issues' can be allayed and, in our opinion, completely disposed of. Under that scheme, in full line with the generally accepted definition of subcontracting, work (e.g. search) would be performed by NPOs on behalf and in the name of the Office, i.e. with its full responsibility and under its full control.
- We cannot see any reason to call the legal basis, i.e. the prevailing interpretation of Article 33(4) EPC, into question. This article has at several occasions been considered the legal basis for working agreements with NPOs or sub-contracting. We see no argument in support of changing the established interpretation of the use of Article 33(4) EPC as legal basis for outsourcing.
- CA/128/05 refers to a 'not purely theoretical risk', namely that, as a result of outsourcing, the Examining Division could be challenged for acting ultra vires to the extent it has based its decision on work done outside the Office. We are of the view that, under the scheme described in CA/61/05, this question becomes wholly irrelevant for the reasons set out in that document as well as in the remark above about 'sovereignty issues'. In our opinion, there are no provisions which would empower the Boards of Appeal to use a particular working agreement decided by the President and the Council as a reason for challenging a decision taken by the examining division.
- A similar concern is also raised by the Office concerning the possibility of European patents being revoked on the ground 'that the requirements of the EPC have not been satisfied'. However, the grounds for revoking a European patent are defined in a clear and exhaustive manner in Article 138 EPC. The fact that the Office's decision to grant the European patent was based on outsourced work is not identified as a ground for revocation. Therefore, we do not think that there is any problem whatsoever regarding revoking of EPO decisions on the ground that part of the examination was subcontracted.
[...]"
A very fundamental debate, indeed. It is, however, a good sign that such documents are now eventually put on a web server so that General Public can have free access to them. But, at the end of the day, care should be taken not to dismember the EPO. Self-serving national interests should be kept under control.
EPO website: 