For decades, Germany has been a major player - driving force, model and host country - in the European patent system. Gert Kolle, principal director (rtd) for "International Legal Affairs and Patent Law" at the EPO, describes its role in bringing about the 1973 European Patent Convention (EPC), and how it continues to shape the patent system in Europe today.
Gert Kolle (GK): From the start, Germany played an important role in "Europeanising" patent law. After the second world war, the German government was very active, first in the Council of Europe and then in the newly created European Economic Community. It was also part of the process of peace and reconciliation for Germany to demonstrate that it was willing and able to make a major contribution to the harmonisation of European law.
The then President of the German office, Kurt Haertel, was strongly in favour of the European patent, and had the full backing of the federal government and justice ministry.
Haertel led the preparatory work for the European patent, and played a large part in the success of the Munich Diplomatic Conference that produced the EPC. Thanks to him, the new European patent system then became reality very quickly. That would never have happened without Germany and France.
GK: Haertel was always the driving force, but tended to hide his light under a bushel. He always said he didn't really know very much about patent law. But with his team of experts he still managed to set up a complex system. Besides his professional expertise, he was above all a visionary with the charisma to get people round a table and win them over.
Of course, Haertel had important allies, including Bob van Benthem from the Netherlands, who subsequently became the first President of the European Patent Office, and Edward Armitage, then head of the UK office. But it was always Haertel who held things together.
GK: Mainly because since 1877, following its industrial revolution, Germany has had an effective examining system, in which its patent office thoroughly searches each application to identify relevant prior art, and then uses that search for substantive examination of the invention's novelty, inventive step and industrial applicability.
That's very different from registration systems,
which leave it up to the courts to rule on patentability issues. Many EPC
contracting states still have such systems today.
With the EPO, all 38 member states now have an examining office.
One such major feature is the EPC's opposition procedure. This gives people
nine months, as from publication, to challenge the patent and get the EPO to
review its grant decision. About 5% of all European patents granted are opposed.
Another is an effective system of legal recourse against patent-office decisions. The EPO's boards of appeal are like courts, giving applicants and opponents a further opportunity to challenge decisions and have them reviewed.
Since the EPC came in, Germany's old "inventive level" is now known all over Europe as "inventive step". To be patentable, an invention must be not only new but also not obvious to the skilled person from the prior art.
Before the EPO opened, users were consulted.
They made it clear that they wanted the EPO to follow German practice on inventive
step, which they regarded as the happy medium between the UK's unduly liberal approach and the Netherlands'
excessively stringent one.
Over the years, of course, in the light of board of appeal case law, the EPO has developed its own practice, as laid down in detail in its Guidelines for Examination. Most people think its approach is the right one.
As long as Germany remains a major industrial nation, it is in the fundamental interest of its economy and political class to have the best possible patent system. That is why - along with many other EU countries - it has been very active in preparations for the European unitary patent which should come about next year.
With its extremely patent-conscious industry, Germany will always play a leading role in industrial property, both internationally and especially of course at European level.
As a research assistant in patent law at the Max Planck Institute from 1969, Gert Kolle followed the work leading up to EPC 1973 very closely. He joined the EPO in 1980, and as head of "International Legal Affairs and Patent Law" helped to oversee the EPC revision that took effect at the end of 2007.