The Tegernsee process
On 5/6 July 2011, Heads of Offices and representatives from Denmark, France, Germany, Japan, UK, the USA and the EPO gathered upon the invitation of EPO President Benoît Battistelli at Tegernsee for a meeting to consider the state of affairs concerning patent law harmonisation.
This led to the creation of the "Tegernsee Group", mandated to engage in strict fact-finding on key harmonisation issues so as to provide substance for future evidence-based policy discussions.
The work results of the Group are available below.
At the first meeting of the Tegernsee Group in July 2011, the participants identified the following issues as key to the substantive patent law harmonization process: first-inventor-to-file, grace period, prior user rights, scope of prior art, definition of novelty and non-obviousness/ inventive step, and 18 months publication.
The Tegernsee Experts Group was requested to draw up an "Aggregate Matrix Document", consisting in a compilation in tabular form of the legal provisions applicable in the Tegernsee jurisdictions to the key harmonization issues listed above.
In April 2011, the Tegernsee Group held its second meeting. The participants were pleased to note that there had been several significant developments in European, Japanese and US patent law which provided additional impetus to harmonization since the Tegernsee I meeting in July 2011. The America Invents Act (AIA) was passed in the United States, the revised law relating to non-prejudicial disclosures (grace period) in Japan went into effect on 1 April 2012, and there had been significant movement in Europe toward the establishment of a Unitary Patent and a Unified Patent Court.
The Aggregate Matrix Document was approved as a fair reflection of the national/regional patent laws in their respective jurisdictions, to form the basis of further work of the Tegernsee Experts Group.
At this meeting, the Tegernsee Experts Group was requested to carry out fact-finding studies mainly of a technical nature on the issues of
- the grace period;
- 18-month publication;
- treatment of conflicting applications and
- prior user rights.
At the third Tegernsee meeting in September 2012, the Heads approved the studies presented to them:
Further, it was agreed that the four Tegernsee Expert Group studies should be widely disseminated, and that the Experts Group should begin a broad user consultation on the basis of these studies, including the development of a Tegernsee Joint Questionnaire apt to produce comparable data across jurisdictions, and the holding of Round-Tables or Hearings of Users in each jurisdiction.
The participants agreed that the results of these consultations would be presented to the Tegernsee Heads at the next meeting, to be considered in informing future decisions regarding the work of the Group.
In September 2013, at its fourth meeting, the Tegernsee Group approved the Reports on the Tegernsee User Consultation drawn up by the individual delegations.
Below are the links to the other Reports of the Tegernsee User Consultations carried out by other Tegernsee delegations in their respective jurisdictions:
The Tegernsee Experts Group has been mandated to conduct a joint factual summary analysing the results of the individual office reports including commonalities and differences in user views and to present the summary for approval to the next meeting of the Tegernsee Heads, to be called in the spring of 2014 in Europe.
On 8 April 2014, at its fifth meeting, the Tegernsee Group approved the Tegernsee Final Consolidated Report, which merged the results of the European surveys (DE, DK, FR, UK and EPO) and summarised and analysed the results of the User Consultation in the U.S., Japan and Europe, with the objective of making the outcome more accessible to interested parties.
This report concludes the work cycle of the Tegernsee Experts on the four topics of the grace period, 18-month publication, treatment of conflicting applications and prior user rights. It was decided that the report shall be disseminated widely, and that opportunities for feedback from users shall be provided by the Offices as they deem appropriate. Finally, it was further agreed that the Report shall be forwarded to the Chair of the Group B+ for presentation to that forum.
On 12 February 2015, the EPO hosted the “EPO Symposium on Harmonisation: Tegernsee and Beyond” in Munich, attended by member delegations of both the Tegernsee Group and the B+ Sub-Group, as well as user organisations from Japan, the US and Europe.