Yet Another Revised Proposal For A Council Regulation On ...

I am sorry, Rebentisch, but this idea reveals an [***] ignorance of how the patent system actually works. Let's see why: a) Re. "patent law harmonisation". First of all, what is harmonised right now, and what should be harmonised? In fact, substantive patent law regarding the validity of patents is already harmonised throughout Europe. For European patents, the European patent convention applies throughout Europe. The EPC is already incorporated into the national law of the EPO member states and would be incorporated into EU law if the EU was to become an EPO member. For national patents, national law applies, but AFAIK, regarding patent validity national patent laws throughout Europe are carbon copies of the EPC. Now, currently, in a few cases in some very specific fields (biotech and IT) differences arise in how the national courts interprete the EPC. This can be solved either via a common court which would set EU (or EPOrg) wide case law, or by legislating those gray zones. However, the latest attempt to harmonise EU patent law regarding one of those grey zones (the CII directive) was the fiasco we all remember. What isn't at all harmonised, on the other hand, is procedural patent law, i.e. how patents are granted and litigated in European countries. Some countries have a simple registration system for patents, without prior art search or examination of validity. Others perform a prior art search (or outsource it to...the EPO), but then grant the patent regardless of the results of the prior art search. Finally, a few countries (a minority, in fact), carry out a full search and examination. Even among those countries, Germany, for instance, while submitting 20-year patents to a thorough search and examination, simultaneously grants so-called "utility models" with a ten-year term without any search or substantive examination whatsoever. Harmonising that won't be a picnic either. If everybody was to be brought to a "best practice" standard issuing patents only after search or examination, most NPOs would have to hire thousands of examiners, or (more likely) outsource all that work to the EPO. Also, that still doesn't solve the language question, which involves whether granted patents have to be translated into a country's language in order to be valid there. Moreover, patent litigation won't be easy to harmonise either. The Germans have a different litigation system than everybody else, splitting litigation of patent validity and infringement towards different court systems. Mind you, there is more patent litigation in Germany than anywhere else in Europe. b) The practicalities of search, examination and grant. "the ItalianPOn can fight with France and the EPO over the Chemistry examination contract for 2015-2020 etc." Well, for starters, neither the Italian PO, nor the French one currently do any actual examination work. They both subcontract their prior art searches to the EPO, and grant without substantive examination. Just a handful of NPOs have actual examination capabilities, and of these, only two (the German DPMA and the British UKIPO) could really be measured to the EPO. Others' examination capabilities are mostly vanity projects, highly dependent on IT infrastructure provided free of charge by...the EPO. Take your hypothetical "Chemistry contract 2015-2020". About 200000 patent applications are filed yearly at the EPO. Of these, maybe half are in Chemistry. Over 5 years that would make half a million patent applications to process. The EPO takes, in average, some 4 mandays to process an application from filing to grant. Even if competition was to breed hugely more efficiency (not necessarily the case, as we'll see) and reduce this to 2 mandays, it'd still be one million mandays. Spread over 5 years, that's 200000 mandays per year, or the work of about 1000 full-time examiners. You need highly qualified people to perform a proper examination: can you even imagine the disruption of hiring, training, and then firing thousands of engineers and scientists all over Europe in five-year intervals?! Never mind that pesky language problem: in which language would the examination take place? Mind you, no NPO is even remotely interested in bidding for such indigestible chunks of work. The biggest ones have enough on their plates, anyway. Only two or three would like to take on some EPO work on a much more limited scale, and primarily just in order to be able to maintain their current vanity examination capabilities. The rest are only interested in the fees, not the work associated with them. As I said, for patent examination, economies of scale matter. A large office like the EPO can afford satisfying recruitment, training and IT facilities. Many NPOs actually take advantage of those facilities free of charge, or at rates well below cost. They would never be able to afford them on their own. Moreover, a large office can specialise much further than a small one. When you file a patent application at the EPO, you know that it is going to be examined by someone with an advanced degree in just that area of technology, and who has done nothing but examining such patent applications for maybe a decade. This is why the EPO's quality is generally considered to be the best in the game, not just in Europe, but also elsewhere (the USPTO, for instance, has a much bigger staff turnover: you are lucky if you get an examiner with more than two years' experience, and then it's probably because he couldn't get a better paid job elsewhere). c) Why OHIM?! The intricacies of administering patent applications are quite different from those of administering trademark and design applications. Due to the examination process, it's a lot more complicated. OHIM can hardly cope with its own work right now, it'd have to hire significant numbers of people just to deal with the administration of the system you propose. All this administration would basically be duplicating administration that already exists at the EPO level. What's the point? If this proposal comes from Spanish politicians, the point becomes in fact blatantly clear: accommodating the powerful vested interests of some Spanish IP firms. Spain has a big deficit of qualified European patent attorneys. The problem is that the IP agent profession in Spain is dominated by trademark attorneys, law graduates who traditionally have looked down to the engineering and science graduates that do the actual footwork of prosecuting patent applications. Since however one of the requirements for EPAs is an engineering or science degree, there are almost no qualified EPAs left to represent applicants before the EPO. However, the requirements for representing a client before OHIM are much lower. The only substantial consequence of putting OHIM as a "front desk" for Community patent application would be to allow Community trademark attorneys to charge for patent prosecution work (which they'd in any case hand down to their technically qualified employees).