The President's decision concerning the pilot project to introduce new means of electronic communication in EPO proceedings (OJ EPO 2015, A28) establishes the legal framework for progressive implementation of the IT Roadmap, the EPO's programme for substantially improving its current IT systems.
To
keep abreast of rising demand from patent system users and society in general,
the EPO has initiated a major programme to improve IT support for the filing
and processing of patent applications. This programme has been translated into
an "IT Roadmap". The aim is to provide better tools to support applicants
and examiners. The EPO's ultimate objective is full electronic processing of
European patent applications from filing to opposition and appeal.
The EPO plans to establish a comprehensive, secure and innovative case
management system that will digitally process patent applications at all stages
of the grant process. The new case management system will replace almost all
the EPO's existing automated processes. It will support the filing of patent
applications at the EPO (currently some 290 000 annually) as well as the
electronic handling of other transactions, which at present amount to around
2.5 million transactions per year.
The new system is intended to improve the electronic processing of patent
applications by allowing enhanced electronic collaboration with users. To that
end, it is intended that patent applications and subsequent documents should as
far as possible be filed in the form of structured data, i.e. in a format such
as XML which would directly allow them to be processed electronically.
Implementation
of such a major change must not compromise the continuity of patent examination
and other EPO activities, and users have a legitimate expectation that any new
systems are tested and fully functional before they are made generally
available.
The EPO has therefore decided to introduce the new tools progressively and in
the form of different pilot projects. Selected user groups will be invited to
participate in the pilot phase for various new or revamped technical features,
which will be made successively available to the test users as soon as the
technical preparations and internal tests have been successfully completed.
This approach should limit the risk of technical faults and malfunctions and at
the same time ensure that testing is meaningful.
Notwithstanding the test character of the pilot projects, use of these
technical features in proceedings before the EPO will accord full legal effect,
i.e. it will be binding and legally valid. However, the test character may
require a degree of flexibility from the Office and from the contractors
developing the technical solutions. Thus the Office reserves the right to make
modifications to technical features already in use. Also, there should be
maximum transparency for participating users and third parties alike, in that
the relevant metadata linked to these new technical features is collected for
evidentiary purposes. Last but not least, test users have to be protected
against adverse consequences resulting from technical faults and malfunctions
of these features, taking into account the legitimate interests of third
parties and the public as a whole.
These fundamental principles have been incorporated in the Decision of the
President dated 11 March 2015 concerning the pilot project to introduce new
means of electronic communication in EPO proceedings (OJ EPO 2015, A28), which provides the legal basis for
this pilot project implementing the IT Roadmap.
The
first part of the decision reflects the fundamental principles of limited
participation (Article 2), flexibility (Article 1(2), but see also Article 12
allowing for the issuing of supplementary provisions and rules diverging from
the decision), transparency (Article 4) and the protection of test users.
Article 5, which addresses the latter issue, is based on the principle that any
participant who is affected by such technical faults should not incur any loss
of rights provided he actively informs the EPO of any such fault and, where
necessary, repeats the procedural act. Where the filing of a patent application
is concerned, the applicant is in such cases required to use another means of
filing in order to retain the date of filing. Thus the EPO will make good the
consequences of technical faults, but only where the participants concerned
help to detect the fault and provide the necessary information in due time.
The second part of the decision lists the chief technical features currently
planned and contains related rules. These features will be made available
progressively and ‒ except for electronic notification, which is already
governed by Rule 127 EPC and Article 9 of the decision ‒ potential test users
and the public will be informed of their implementation and the specifications
and conditions for participation in the pilot phase, if any, through the EPO's
website or by other suitable means.
