EPO Under Fire At CIPA Congress

According to Article 4(1) of EPC2000, a European Patent Organisation (EPOrg) is established. It has administrative and financial autonomy. And, Article 4(2) EPC2000 says that the organs of the Organisation are:

• the European Patent Office (EPO); and
• the Administrative Council (AC).

So, there might indeed be room for a discussion on which of both organs might be a proper addressee for any critics concerning Raising the Bar etc pp.

From Article 33 EPC2000 it is clear that the rule-making authority - underneath of the general powers of the Diplomatic Conference in accordance with Article 172 EPC2000 - lies with the AC, not with the EPO or its President.

According to Article 26 EPC2000, the AC is composed of the Representatives and the alternate Representatives of the EPC Contracting States. Each EPC Contracting State is entitled to appoint one Representative and one alternate Representative to the AC. It should be duly taken note that AC Members are Representatives of their respective country, i.e. they are not selected as distinguished individuals entitled to act on their own motion but they have to report to their Government. During the public debate on the patentability of computer-implemented inventions earlier this decade, some contemporaries from the anti-patent brigades missed the point by criticising that many of the AC Members are also at the same time head of a national Patent Office. They were blamed to have a bias because of they are inclined to defend the interests of their own Patent Office at home, some have said. This is misleading because of those individuals, in their capacity of being a Representative of a EPC Contracting State, surely are mandatorily briefed by the respective Government before they are allowed to take any action in the AC. If, for example, a national Government were determined to sacrifice interests of its own national Patent Office, the head of the latter would, if sitting in the AC, nevertheless have to execute the political mandate of the Government even if this means that the own Patent Office at home will suffer badly. OK, in reality it does not look that likely that the Government of any EPC Contracting State might be willing to sacrifice any of the interests of its national Patent Office, but that is a quite different matter.

I do not have the slightest idea as to who has come up first e.g. with the much criticised new rules governing divisional applications. Maybe it was someone within EPO, perhaps even Ms Brimelow herself. But that does not count. The political responsibility for rule-making lies alone with the AC, i.e. with the Governments of the EPC Contracting States. As many will already know, the President of EPO is not only appointed by the AC in accordance with Article 11(1) EPC2000 but also manages the EPO which, in turn, is responsible for its activities to the AC (Article 10(1) EPC2000). Hence, the President EPO is also indirectly responsible to the AC. All this gives a clear indication on where the real power is.

Consequently, I think that it is true to say that the Masters of EPC Universe are the national Governments of the EPC Contracting States via their appointed representatives in the AC. And, hence, if something goes wrong with regard to rule-making, they should be blamed, not the EPO, neither represented by the President nor by any other senior employee.

So far it might theoretically be worth for CIPA e.g. contemplating next time to invite Mr David Lammy, MP, UK Minister with responsibility for intellectual property (Wikipedia, Twitter) to receive tough questions concerning EPC rule-making.

But, to be honest, I suspect that doing so would make you end up in the middle of nowhere:

• Mr Lammy - like anybody else responsible for patent matters in another EPC Contracting state Government - might argue that UK merely has one vote in the AC like all other EPC Contracting States (Article 34(2) EPC2000), UK standing alone therefore being unable to decide anything on their own; and
• Mr Lammy might also argue that there is a general rule of Diplomatic confidentiality around the deliberations of the AC, and disclosing details might harm UK's interest.

And, of course, substitute 'Mr Lammy' with the name of some person in charge in your country, and the sentences above will work the same way.

In the effect it appears as we currently have a Byzantine, non-transparent and hermetically closed system of 36 national Governments of the EPC Contracting States running the business of the AC.

But in reality things are still more complex and instransparent. Most of the EPC Contracting States are also Member States of the European Union (EU). In the context of the EU, national Governments have opportunities to align their IP politics not only in the EU Council but also in meetings of somewhat obscure groups like COREPER, the Working Party on Intellectual Property or the "Friends of Presidency" Group.

Hence, senior players in the respective national Governments appear to have two lines of command and control for governing European patent politics:

• Briefing the Representative of the respective national Government in the EPOrg AC; and
• Briefing the Representative(s) of the respective national Government in the EU Council including the EU Council plenum meetings, COREPER, and he Working Party on Intellectual Property as well as the "Friends of Presidency" Group.

All these activities are virtually intransparent for the general public.

Foxy as they are, national Governments are used to dispense, from time to time, some carefully selected internal papers from inside this IP Circus - often under the seal of confidentiality - to industry associations or to associations of the IP professions. By doing so, the respective Government makes the recipients of such papers feel privileged and flattered, and in turn, sometimes the recipients, if based on a national constituency, are tempted into a belief that 'their' national Government might even be willing to fight for their own particular interests.

But facing the mirror of some reality check, the IP professions might find themselves on stage in the role of mere supernumeraries. Yes, within the internal system of the EPOrg there is even an infomal group called SACEPO where, inter alia, IP professionals are asked to provide their comments but the mere fact that even Google does not know anything on the details thereof says all about the placebo character of that thing. My personal impression is that during this decade the influence of the various bodies of the IP professions is constantly on the decline. For example, they did not have sufficient power and/or influence to avoid some detrimental measures of the first basket of the 'Raising the Bar' initiative, and I do not expect that there will be any chance to fend off any cruelties of the second basked thereof. And, finally, any hope of gaining particular advantages from the 'own' national Government might well turn out to be futile because of the mechanics of power doesn't reward favours to national groups which are tiny and don't substantially count as significant block of voters.

Without abandoning friendly and co-operative discussions with senior EPO staff it might be worth thinking about how to politically foster a transition of the EPOrg AC business towards a more transparent mode of operation. A fist step might, for example, be to suggest on as many national channels as possible a mandatory implementation of a document database like that of the EU Council wherein, as a general rule, all AC Documents would be listed with their bibliographical data and be accessible as PDF files unless very particular circumstances (e.g. protection of personal data in staff appointment matters) justify withholding them. Regarding the EU Council database, far too many documents therein are marked confidential (e.g. in view of ACTA or even with regard to the EU Community Patent) but it is a start, though.

Such kind of transparency might help to create some sort of a level playing field for all stakeholders involved, allowing useful coalitions.

It is clear that in the current situation the national Governments of the EPC Contracting Countries are not necessarily sworn in to promote the cause of the European Patent Office as a centralised authority. The codeword is EPN, the European Patent Network, which one day might mean anything from an informal club of National Patent Offices (NPOs) sharing information and a little search work up to a tightly integrated ICT platform which acts as a portal towards patent applicants and their professional representatives, depriving them from direct access to EPO as we are used to have so far. All will depend on deliberations currently held mostly in secrecy.

And, it might be quite naive to assume that all of the national Governments involved in this sort of IP Circus will think of nothing else than the well-being of innovative high-tech industries throughout Europe.

(Photo: (C) 2009 by ohallmann via Flickr under a CC-BY licence)