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Friday, March 30, 2007

Issue 01/2007 of epi-Information Now On-Line.

The recent issue 01/2002 is ready for download

here (PDF).

This issue is a themed issue of epi Information dedicated to aspects of training in the Member States, covering epi tutorials 2007, pre-announcement of epi seminars, CEIPI news, and a survey on the patent profession in the EPC member states.

On page 9, there is a quite interesting statistics concerning the list of professional representatives admitted for representation before the EPO. There are two routes as to how to make the way onto this list:

According to Article 134 EPC: Passing the European qualifying examination (EQE) with its notoriously low pass rate; or
According to Article 163 EPC: Being a national patent attorney, entitled to represent natural or legal persons in patent matters before the central industrial property office of the Contracting State in which he has his place of business or employment, during a transitional period after accession to the EPC. This is the so-called "Grandfather's Clause".

Of course, just after the EPO had become operational in the late 1970s, 100% of the European Patent Attorneys had been enrolled on the list of professional representatives by means of said "Grandfather's Clause". Even today, roughly 25 years thereafter, in Germany still 27,5 % of the European Patent Attorneys are on the list who are beneficiaries of the said "Grandfather's Clause", says the above-mentioned statistics printed in the recent issue of epi-Information. And, in total, 42,7% of all European Patent Attorneys (3738 out of a total of 8747) never had to sit the EQE. There appears to be a quite striking imbalance with regard to access to the legal services market in the EPC region between those who have been lucky to be "grandfathered" onto this list of representatives, on the one hand, and those who had to take the EQE, on the other hand.

When creating the Office for Harmonisation in the Internal Market (OHIM), the EU Commission was confronted with the same question as to how to deal with accrediting of professional representatives. They eventually took another route than the Munich Diplomatic Conference in 1972 forging the EPC: In

Article 89 CTMR, it was stipulated that a candidate eligible for entry into the list must be entitled to represent natural or legal persons in trade mark matters before the central industrial property office of the Member State in which he has his place of business or employment. Where, in that State, the entitlement is not conditional upon the requirement of special professional qualifications, persons applying to be entered on the list who act in trade mark matters before the central industrial property office of the said State must have habitually so acted for at least five years. However, persons whose professional qualification to represent natural or legal persons in trade mark matters before the central industrial property office of one of the Member States is officially recognized in accordance with the regulations laid down by such State shall not be subject to the condition of having exercised the profession.

With other words, the exceptional "Grandfather's Clause" of the EPC is long-standing norm with regard to professional representation before the OHIM.

I never have heard complaints to the effect that professional representatives entitled to represent before the OHIM are considered to be substandard just because of there is no OHIM counterpart of the EQE.

And, nobody of those "Grandfathers" representing their Clients before their EPO without having sit the EQE would ever accept to be seen as second to those who have passed EQE.

Hence, it looks as if something like a mishap happened when in 1972 the Munich Conference drew up Article 134 EPC requiring passing of the EQE.

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