EPN About to be Implemented Soon?

The intention of the Utilisation Pilot Project (UPP) is to increase the efficiency of the patent granting process, and to avoid repeating work already being done once. Some testing has been done with a view to full-scale implementation, within the framework of the Utilisation Pilot Project. The UPP was said to be used to assess the extent to which the results of work done by the national patent offices of the EPO Member States during the examination of applications within their priority year can be utilised by both the European Patent Office (EPO) and the applicants. The aim of the project was to find out whether the overall efficiency of the European patent granting procedure can be improved by utilising NPO work. Four pilot offices (Austria, Denmark, Germany and the UK) operated by the EPO, have run the UPP for approximately 12 months.

I have heard of some problems within the context of UPP which point into the direction that this undertaking might be seen as a failure. However, I never have seen some Official statement originating from the EPO except that UPP has been extended from a first stage as originally planned to some kind of second stage:

• "UPP by Applicant": In this phase, the pilot office of initial filing invites applicants at random to participate in the UPP. Applicants who accept the invitation send national office search and examination results on the initial application to the EPO together with their subsequent European application. "UPP by Applicant" started in April 2007 and ended on April 2008.
• "UPP Direct": In "UPP Direct" the EPO requests the pilot offices to send publicly available copies of national office search and examination results for selected initial national applications direct to the EPO. These are cases where the national application has been published but the search on the subsequent European application has not yet been conducted. "UPP Direct" started in January 2008 and will run throughout 2008.

Some sceptics say that the second stage was added because of the first one has been a complete failure in terms of quantity and quality of the results. But these findings are only rumours; unfortunately the Administrative Council of the European Patent Organisation as well as the national Governments of the EU Member States appear to prefer to be entirely silent so that there is no counterweight in terms of published Official Documents.

In this vacuum of silence other rumours mushroom. Allegedly the Administrative Council is about to take further political decisions concerning the implementation of EPN very soon. Maybe that strong interest groups of national Governments will force their way to establish an EPN which will be, via the Administrative Council, be indirectly controlled by the national Governments themselves. This would mean that indeed something like an unfriendly takeover of the European Patent Office is underway - but not undertaken by the European Union as I had thought earlier but by the EU Member States on a national level via the Administrative Council. Maybe this is a reaction on the fading chances of taking over of the EPO by the EU under the roof of the EU Community Patent Project.

I cannot say that in my view each and every institutionalised co-operation between the European Patent Office (EPO), on the one hand, and various National Patent Offices (NPOs), on the other hand, is per se evil. It clearly depends on the particulars, I am inclined to think. However, there is a growing mood of distrust if the main actors are eager to hide their political movements from the general public.

The bodies of the European Union, in particular the EU Council, are bound to statues which enforce at least some minimum of openness with regard to their files. It might well be that it is overdue for the Administrative Council to adopt such kind of general policy. And the fact that ACTA negotiations are held in complete secrecy is corrosive for trust of the general public in IP politics.

Perhaps there is also some connection between the silence of the main actors in this political theatre, on the one hand, and a broad lack of public discussion on that topic, on the other hand. But one point should be crystal clear: If the EPN should ever be implemented it will drastically change the landscape of IP in Europe as perceived by applicants as well as by their professional representatives.