More News from EU Patent Policy Theatre

A number of limitations of the effects of the European patent appear to have been added to Article 14e:

• Use by a farmer of the product of his crop for propagation or multiplication on his own holding, provided that the reproductive vegetable material was sold or otherwise commercialized by the holder of the patent or with his consent to the farmer, for agricultural purposes. The scope and the detailed methods of this use are laid down in Article 14 of Regulation (EC) No. 2100/941;
• Use by a farmer of protected livestock for farming purposes, on condition that the breeding animals or other animal reproductive material was sold or otherwise commercialized to the farmer by the holder of the patent or with his consent. Such use includes the provision of the animal or other animal reproductive material for the purposes of his agricultural activity, but not the sale as part of or for the purpose of commercial reproductive activity;
• Acts allowed pursuant to Articles 5 and 6 of Directive 91/250/EEC on the legal protection of computer programs by copyright, in particular, by its provisions on decompilation and interoperability; and
• Acts allowed pursuant to Article 10 of Directive 98/44/EC on the legal protection of biotechnological inventions.

This surely is an important step to clarify the limitations of effects of patents towards corresponding limitations in other areas of IP law.

Moreover, in Article 28, paragraph 2, stating that parties may also be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the European Patent Convention and who have appropriate qualifications such as a European Union Patent Litigation Certificate, a precondition has been dropped demanding that those Attorneys need to be authorised to represent parties also before a court of a Contracting party. This means that now also European Patent Attorneys seated in countries where they do not appear in Court could benefit from this clause.

Article 48 has been reworded by stating that when a question of interpretation of Community law arises in a case pending before the Court of Appeal, the Court of Appeal shall ask, if it considers this necessary to enable it to give a judgement, the Court of Justice of the European Communities to decide on the question. There is no longer provided a general option of lodging an appeal to the ECJ on points of law as given in earlier drafts.

It might well be that all that work on details of EU Community Patent plus EU Patent Court is, in the first line, in fact helpful or even necessary for sorting out certain difficulties in determining the proper power balance in the Administrative Council (AC) of the European Patent Organisation (EPOrg) the latter actually running the European Patent Office (EPO). The AC is made up of Members sent by the Governments of the EPC Member States. As it is known since long, some or even many Governments of the EPC Member States are worried that revenue streams for their respective national Patent Offices (NPOs) might dry up on the long run because of the overwhelming success, in terms of filing numbers, of the EPO. And, in addition, the current economic downturn has even made things worse: For example, the Danish Patent and Trade Mark Office has already laid off some of its staff. Now, it would not come to me as a surprise if, after all hope of reaching a political breakthrough for the EU Community Patent project in 2008 had faded away, now the quarrels of balancing pan-European and EU perspectives, on the one hand, and purely national perspectives, on the other hand, would come to a head very soon, maybe in one of the next coming meetings of the AC. I expect that such sort of claims would then be fixed for a quite long period of time.

In this context, some further Document 6044/09 issued by the Czech EU Presidency under the date of February 03, 2009, appears to be of particular relevance. It bears the title Towards an Enhanced Partnership between the Patent Offices under the Community Patent but my personal impression when reading it was that this might well be an attempt to provide some draft or plan for political landscape of co-existence between two classes of patent systems as seen from the perspective of the protagonists of the EU. Albeit the introduction of this paper explicitly and in great detail refers to the planned EU Community Patent, a number of points in the other sections

• Objectives for a future patent system in Europe
• Collaboration towards an enhanced partnership under the Community Patent
• Further improvements and value added to the European Patent Network, in particular to the Utilisation Pilot Project
• Next steps

might well be read and understand also in view of the current situation with the EPO executing the EPC, on the one hand, and numerous NPOs dealing with national law, on the other hand. I expect there are - unpublished - counter-papers from national stakeholders.

The Document cited above states 10 basic criteria to govern the co-operation between the EPO and the NPOs:

• The quality of the patent system should maintain its current high levels compared to patent systems in other major economies and should even further improve in the future, as the "Raising the bar" initiative underway at the EPO strives to achieve. It is crucial to avoid any deterioration from the current high standards of patents granted by the EPO. With its critical mass of around 3500 examiners who are fluent in several different languages and possess a very high degree of skill and knowledge in their field of specialisation, the EPO is regarded as a world leader in patent examination.
• The EPO plays a central role in the grant of high quality European patents, and will be pivotal to the success of the Community patent. Given the strength and depth of technical expertise at the EPO, it is undisputed that the Community patent should be entrusted to the EPO. The EPO must remain responsible for the examination and the grant of the Community patent.
• The EPO should continue to meet its operational costs in order to guarantee the long-term financial security of the Office under a Community patent system and retain a high quality workforce.
• Backlogs of unexamined patent applications need to be reduced without a detrimental effect to the quality of rights granted. A possible increase in backlogs due to the introduction of the Community patent should be avoided. Delays cause uncertainty to companies, which particularly impacts on innovative SMEs in bringing their ideas to the marketplace. In fields where the progress of technology is rapid and product cycles are short, and in areas of strategic importance, a situation with long pendency times for patent applications is highly undesirable.
• Timely delivery of patent rights in the future patent system should be improved by more efficient use of technical expertise. Unnecessary duplication of work must therefore be avoided.
• Enhanced partnership between patent offices should respect the preferences of users, take account of any special needs, and safeguard the principle of applicant choice.
• The system should make optimal use of all resources, such as IT tools. Full use and further improvement of communications technologies should take place to enable synergies to be created within the system.
• The patent system should provide support for the benefit of users in all EU Member States. User support for public research organisations and SMEs should be accessible, providing appropriate advice on patents and other intellectual property to facilitate knowledge transfer activities.
• NPOs will play an important role in the future system under the Community patent. Where services are provided to users, they will need to be up-to-date, and may require modernisation to attain high levels of efficiency.
• The system should have the capacity to respond to present and future European and global concerns, such as climate change and the economic crisis.

The central and determining role is to be reserved for the EPO; the NPOs may serve the central point of the collaborative network provided that certain standards are met. For example, the EU Document suggests that participating NPOs will need enhanced IT systems that meet minimum levels. Internal software applications should be compatible with those at the EPO along with improvements in remote access to IT systems of the EPO or NPOs with specific skill in that domain. Examiners in NPOs should have at their disposal the same databases for searching on the EPOQUE platform as EPO examiners. According to the Document, this will require remote access networks offering fully secure connections. Efforts are proposed also be made in modernisation of document receipt and file management systems at NPOs to aim for full electronic document management systems that can be integrated with those used at the EPO. Theoretically it might be considered that NPOs utilise work results created by EPO; in fact, the single role model acutally under evaluation appears to be EPO acting as some sort of drain for results fed in by NGOs. This reflects the economic background of the current situation: NPOs desperately need sources of income deemed secure for long years (not (yet) vice versa) while the applicants continue to walk away towards more centralised services as offered by EPO.

The paper makes perfectly clear that the process of political discussion is far from being over; a concluding proposal suggests that a common ground should be explored, so that all NPOs who wish to do so are able to participate in collaborations with the EPO under the Community patent. It is, however, a pity that the national Governments behind the AC continue to implement a cult of secrecy concerning papers and deliberations of the AC.

Stressing the point of applicant choice in said quoted EU Document feeds my concerns that certain national Governments might quite be ready to safeguard revenue streams for national offices by making the involvement of NPOs mandatory.