EU Community Patent: The Mill Goes On And On

Meanwhile Document 13707/09 issued by the General Secretariat of the Council on September 29, 2009, and titled Proposals for amendments to the European Patent Convention is circulating on the net (link thanks to Mr Laurent Teyssedre in his European Patent Case Law Blog). This Document describes in its Annex I in detail the amendments needed to install a EU Community Patent under the roof of the European Patent Convention (EPC). At the time being, Article 1 EPC defines the purpose thereof as a system of law, common to the Contracting States, for the grant of patents for invention. The term "Contracting States" obviously needs to be amended to read: "Contracting Party means a Contracting State or the European Community". On the institutional level, the EPO will be extended by a Community patent Division as soon as the EU Community Patent becomes reality (Article 15 as amended). The Community Patent Division will be responsible for all acts of the European Patent Office relating to Community patents, insofar as those acts are not the responsibility of other departments of the Office. Decisions of the Community Patent Division will be taken by one legally qualified member (see Article 149d EPC)

Moreover, a new Article 24 EPC stipulates that when applying the EPC the European Patent Office shall take due account of relevant principles deriving from the jurisprudence of the European Court of Justice or of the new EU unified patent court structure. This appears to be some entire new aspect of subjugation of the EPO under EU Courts.

The Administative Council (AC) of the European Patent Organisation (EPOrg) running the European Patent Office (EPO) will be augmented by a Select Committee (Article 149j EPC). It will be composed of representatives of the European Community and representatives of all of its Member States. Practically this means that the vast majority of EPC Contracting States will have a seat within the Select Committee except a few non-EU countries like Switzerland, Norway, and Turkey. A favourable opinion by the Select Committee will be required as a precondition for allowing the Administrative Council to reach decisions on the following:

• (a) the proportion of renewal fees referred to in Article 39a EPC;
• (b) measures applying to budgetary matters relating to the Community patent;
• (c) the Implementing Regulations relating to this Part.

Talking cleartext this means that the block of EU Member States within the Administrative Council will have the power to determine the politics thereof with regard to a catalogue of important aspects. Non-EU Member States might get marginalised. Moreover, the select Committee shall be solely competent to adopt and amend:

• (a) its Rules of Procedure;
• (b) the particulars to be entered in the Community Patent Register and Bulletin under Articles 149e and 149f EPC;
• (c) Rules relating to fees for the purpose of establishing and amending the renewal fees referred to in Article 149g, paragraph 1, EPC;
• (d) Implementing Regulations for the purpose of establishing and amending the distribution key referred to in Article 149g, paragraph 2, EPC.

Document 13707/09 further comprises two more annexes:

• Protocol to the Revision Act of the European Patent Convention on Enhanced Partnership (Annex II); and
• Protocol to the Revision Act of the European Patent Convention on the Renewal Fees of the Community Patent (Annex III).

Obviously the idea is to fix the respective compromises concerning those aspects in a legally binding way. The aim of the Enhanced Partnership Protocol is to make it possible for the European Patent Office to make regular use, where appropriate, of the result of any search carried out by central industrial property offices of Member States of the European Patent Organisation on a national patent application, the priority of which is claimed in a subsequent filing of a European patent application.