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Statement by Dr Roland Grossenbacher, Chairman of the Administrative Council of the European Patent Organisation

Munich, 29 November 2000, 12.30 hrs
European Patent Office --

Mr President,

Ladies and gentlemen,

This morning, we have reached the end of nine days of intensive deliberations on the revision of the European Patent Convention concluded in 1973. The delegates of the 20 member states of the European Patent Organisation had to consider a catalogue of nearly 100 proposals for revising provisions of the Convention. The aim of this Conference was to modernise the legal basis of the European patent system, and thereby ensure that it can continue to function efficiently in an increasingly integrated European economy within the framework of world trade, and that it will remain capable of evolving in future. This is an important contribution to strengthening the institutions which underpin the European economy.

The Conference has achieved its ambitious aim, and I am pleased to be able to present the positive results of its efforts today. In front of you, you will find the Revision Act adopted by the Conference - the relevant document is the one bearing the number MR/3/00 Rev. 1. Over the past nine days, the European Patent Organisation has demonstrated that it is willing and able to proceed with due swiftness in reforming the European patent system in order to safeguard its long-term adaptability in the face of rapidly changing political and economic conditions.

Before moving on to outline the results of the Conference, I would like to speak briefly about the protection of biotechnological inventions, although this was not on the agenda for our discussions. No one can dispute that this is a sensitive issue which is very much in the public eye. However, long before the Diplomatic Conference, the member states of the European Patent Organisation decided not to consider it in Munich. In view of the leading political and legislative role of

the European Union in this area and of the impending implementation by many countries of the EU Biotechnology Directive, it seemed inadvisable to open up a parallel discussion. As you will see from the Conference Resolution, which is also in the documents in front of you, the states represented here are fully aware of their responsibilities and will deal with the subject of biotechnology in a further revision round. For this reason, the Conference adopted an open stance towards the concern voiced by Greenpeace and gave two representatives of that organisation an opportunity to present their views to the Conference Plenary, both orally and in written form.

Let me now turn to the results of the Conference. These affect almost every aspect of the European Patent Organisation, but I shall confine my comments to the main issues. Our experts are present who will gladly answer any questions you may have afterwards.

First, I should point out that the Conference agreed not to delete computer programs from the list of non-patentable inventions. For the meantime, the existing legal position therefore remains unchanged. The Conference's decision took account of the process of consultation on the future of legal protection in this field, and in no way challenges the existing practice of the Office and its boards of appeal, or that of national patent authorities and courts. As before, computer-implemented inventions can be patented if they involve a new and inventive technical contribution to the state of the art. Technical solutions for use in data processing or for carrying out methods of doing business therefore remain patentable.

This follows from the concept of invention itself, which draws a clear distinction between technical solutions and non-technical methods. On this basis, patents cannot be granted for computer programs or business methods which are not of a technical nature.

In substantive European patent law, the Conference clarified and strengthened the extent of protection conferred by European patents by expressly including so-called "equivalents".

At the institutional level, the Conference advocated bringing the European Patent Organisation more firmly within the political responsibility of the member states and decided to insert a provision in the Convention stipulating that a regular conference of ministers be held. It also decided to authorise the Administrative Council to adapt the EPC to international treaties and European Community legislation, albeit with far stricter limitations than were originally envisaged.

In addition to these institutional and substantive aspects, the Conference approved a raft of amendments aimed at simplifying and streamlining the patent grant procedure before the European Patent Office, thereby ensuring greater legal certainty for applicants and patent proprietors. In future, for example, it will be possible to file patent applications in any language, since a translation into one of the official languages of the EPO will not be required until a later date. During the procedure itself, applicants will benefit from improved protection against inadvertent legal consequences arising from the non-observance of time limits.

A further important feature of the revision gives patent proprietors the option, in a central procedure before the EPO, of limiting the protection afforded by their patents.

Having a central limitation procedure means that proprietors will not have to go through the national patent offices, and that, should a patent as granted turn out not to be valid, it can be limited by means of a rapid and unbureaucratic procedure.

This limitation option not only answers long-standing calls for such a procedure from experts in the field, but is also in the public interest, as evidenced by the controversy surrounding certain biotechnology patents. It will act as an incentive to amend incorrectly granted patents quickly and at low cost.

As far as streamlining the European grant procedure is concerned, delegates have given their approval for search and examination to be brought together. The European Patent Office must be the only patent office in which these two procedures are not carried out by one and the same patent examiner. Up till now, search and examination have been spread over a number of different locations. Now that the EPO's vast collection of search documentation is available at all its duty stations through its databases, there is no longer any need to separate the two tasks. This move is bound to lead to a significant increase in the productivity and efficiency of the EPO.

The Conference has also created the legal basis for special agreements between the contracting states concerning the translation of European patents and the introduction of a central court system for the enforcement of European patents, issues which are also of importance for the Community patent proposed by the European Commission.

I think you will agree with me that the Diplomatic Conference 2000 has been a great success, and that the European Patent Organisation has made great headway with the reform of the European patent system.

European industry now has a much stronger foundation on which to base its patent strategies. And Europe's standing as an economic force in the global economy, and hence its competitiveness, will be enhanced by the measures adopted at this Conference to strengthen patent protection under the European Patent Convention.

With this revision of the Convention, the 20 member states of the EPO have given the go-ahead for further consolidation of the European patent system. The Conference Resolution which you have before you makes it quite clear that there are a number of outstanding issues of some significance, in particular the protection of computer programs and biotechnology inventions, which require further analysis. The European Patent Organisation has been urged to make preparations for a further Diplomatic Conference. Proposals for further revision might include software patents and the changes required to implement the Community patent without delay.

This Conference has paved the way for further reform of the European patent system. The new provisions it has adopted will not, however, enter into force immediately, as they first have to be ratified by the parliaments of our member states. The Convention as revised at this Conference will therefore probably not have legal effect for another four or five years.

President Kober and I will be pleased to answer any questions you might have. Thank you for your attention.