Developments in the European patent system

Strategy debate
 
The strategy debate initiated by the Administrative Council in June 2004 with a view to exploring ways to improve co-operation between the national patent offices and the EPO continued throughout 2005. At all its meetings, the Council devoted time to discussing the many substantial contributions submitted by the member states and the Office. The strategy debate is likely to be concluded in the course of 2006.
 
Member, extension and candidate states
 
With the accession of Latvia on 1 July, the European Patent Organisation now has 31 member states. Thus today the European patent system is the gateway to patent protection in a total of 36 countries (including five extension states).
 
EPC ratification proceedings are in progress in Malta, which is highly likely to accede in 2006, with other countries expected to follow in the next few years. On 15 December the Council invited Croatia to accede to the EPC. Last year the former Yugoslav Republic of Macedonia submitted a request for an accession invitation, and the Council granted observer status to Bosnia and Herzegovina and to Serbia and Montenegro.
 
EPC 2000
 
In November 2000 the Organisation’s member states adopted the first comprehensive revision of the EPC. The Revision Act stipulates that the revised version of the EPC, known as the EPC 2000, is to enter into force no later than two years after ratification by the fifteenth member state. On 13 December 2005 Greece became the fifteenth state to deposit its instrument of ratification, which now means that the EPC 2000 will enter into force no later than 13 December 2007.
 
Community patent
 
Last year brought no progress towards the adoption of the Community Patent Regulation. To gather new momentum for another determined effort, the European Commission in January 2006 launched a public consultation on future patent policy in Europe. Industry and other stakeholders have been asked to provide their views not only on the Community patent project but also on the measures that could be taken in the near future to improve the existing European patent system, including the establishment of a European Patent Court under the European Patent Litigation Agreement.
 
European Patent Litigation Agreement
 
In 2005 work continued on the European patent litigation system, in particular with the integration of Directive 2004/48/EC on the enforcement of intellectual property rights into the latest draft texts of the European Patent Litigation Agreement (EPLA). The texts would in principle now be technically ready for discussion at an intergovernmental conference. Many leading patent judges have already advocated holding such a conference on the EPLA, and European industry has repeatedly stressed the urgent need for a unified litigation system. In early 2006 the European Commission launched a debate on the creation of a stable system of intangible property law in Europe, and in that context the patent community is invited to submit its views on the EPLA again. Thus now there is every reason to hope that the necessary political support for convening an intergovernmental conference on the EPLA will come together in the foreseeable future. To give impetus to this process, the Office has drawn up a document once more setting out the reasons why a unitary European patent system with a common court would be a positive contribution to the strengthening of Europe’s competitiveness.
 
London Agreement
 
In 2005 two member states – the United Kingdom and Latvia – ratified the London Agreement on the application of Article 65 EPC. A total of six states have thus ratified this Agreement which would significantly reduce the costs of translating granted European patents. To enter into force, the London Agreement must be ratified by eight states, including France.
 
Computer-implemented inventions
 
In the first half of 2005, the proposed Directive on the patentability of computer-implemented inventions was discussed in the Council of the European Union and in the European Parliament, drawing considerable public attention. However, on 6 July the European Parliament rejected the proposed Directive by 648 votes to 14, with 18 abstentions. This terminated the legislative procedure, and for the present no changes need to be made to the EPC or to EPO practice, which is governed by the EPC, the Guidelines for Examination and the case law of the boards of appeal.
 
International harmonisation of patent law
 
Following the consultations initiated in early 2005 by the US Government and the Director General of WIPO, discussions on the harmonisation of substantive patent law gained new momentum.
 
At the exploratory meeting held by the USPTO in February 2005 in Washington, EPC contracting states and other Group B member states (the industrialised countries), the European Commission and the European Patent Office (Group B+) decided to further advance work on patent law harmonisation among industrialised countries with a view to presenting work results to WIPO’s Standing Committee on the Law of Patents (SCP) at a later stage.
 
To that end two expert groups were set up. Group I met in Munich in April and November, studying the ”reduced package” for the Substantive Patent Law Treaty (SPLT) – novelty, inventive step, grace period and prior art – and achieving preliminary consensus on many of these provisions. Group II, set up to address the issue of IP and development, confirmed its commitment to the development of the IP system, so as to accommodate the needs of the developing countries. Group B+ will continue its work in 2006  with the secretarial support of the Japan Patent Office.
 
Within the SCP, no progress was made in 2005. Against this background, at the recent session of the WIPO General Assembly in September, WIPO member states agreed that an informal open forum should be held in early 2006 on all issues raised in the draft SPLT, followed by an informal session of the SCP to agree on a work programme. It remains to be seen whether the SCP will thereafter be in a position to continue its work on the SPLT.
 
European Round-Table on Patent Practice
 
The 14th meeting of the European Round-Table on Patent Practice (EUROTAB) was held in Taastrup (Denmark) in May and was attended by some 40 delegates from the national offices and the EPO. The items on the agenda included function-related product protection in biotechnology, formal requirements for priority claims and exhaustion of priority right.
 
Patent Cooperation Treaty developments
 
The Patent Cooperation Treaty (PCT) Assembly in September 2005 adopted a number of changes to the PCT Regulations, concerning matters such as rectification of obvious errors, restoration of the right of priority, and missing parts of the international application. All of these changes are consistent with the Patent Law Treaty, though for some of them it will be necessary for the EPO to enter a transitional reservation until the EPC 2000 enters into force, which will now be the end of 2007 at the latest.
 
The Assembly also approved a work programme for PCT reform in 2006, which will continue to focus heavily on day-to-day improvements to the PCT system, such as a new supplementary search system during the international phase, though there have been some indications within the Trilateral that the USPTO may wish to relaunch some of the more far-reaching proposals, originally put forward in 2000  at the beginning of the reform exercise.
 
The EPO was represented at two Meetings of International Authorities in 2006 which concentrated on further development of the PCT Quality Management System, now obligatory for the International Authorities, and on changes to the IPC and the minimum documentation.
 
In the context of the ongoing strategy debate within the Administrative Council, the Office has initiated dialogue with the four European PCT Authorities in order to explore a new framework for co-operation between the EPO and the other PCT Authorities. As a follow-up to the Council decision to change the rules on supplementary searches under Article 157 EPC where the international search was performed by a European International Searching Authority, the Office proposed corresponding changes to the decisions concerning the non-European International Searching Authorities, which were adopted at the December Council meeting.

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