Reports on meetings of the Administrative Council
Report on the 91st meeting of the Administrative Council of the European Patent Organisation (10 to 12 December 2002)
The Administrative Council of the European Patent Organisation held its 91st meeting in Munich from 10 to 12 December 2002 under the chairmanship of Mr Roland GROSSENBACHER (CH).
The President of the Office, Mr Ingo KOBER, presented the Office's activities report for the second half of 2002:
Implementation of the Office's mission statement had continued with numerous teams working on the basis of joint agenda building. Four specific issues - mastering the workload, quality, human resources policy and computer stability and reliability – had been identified for their Office-wide importance and the corresponding joint agenda projects were being sponsored by members of the Office's management committee.
For the first time in ten years, the Office had seen a slowdown in the growth of filings. The available figures indicated that applications in 2002 would not reach the budget total of 175 000. The expected total of 165 000 filings gave an increase of around 4% (158 200 filings in 2001).
At the end of September 2002, 124 600 applications had been registered, making a total of 160 500 over the previous twelve months. European direct applications had fallen appreciably, further than anticipated in the revised plan at the start of the year.
The number of Euro-PCT applications had not reached the revised figure in the spring forecast, but had nevertheless risen to the budget level. As expected, the proportion of PCT filings continued to increase: it now stood at 69%, exactly as forecast in the spring.
The slowing of growth in filings had a direct impact on the search workload. The expected total of 152 000 searches was 2% down on 2001 and 15 000 lower than the figure forecast at the start of the year (130 700 at the end of October). As in 2001, PCT-type searches accounted for about 44% of the work in this area.
The substantive examination workload had remained stable, with no change vis-à-vis 2001. The figure was 10% lower than forecast; at the end of the year it was expected to be around 125 000 files (103 100 at the end of October).
The 5% discrepancy between the actual and forecast workload figures for European applications was partly attributable to below-plan search production. A total of around 83 000 European examination requests was expected (69 400 at the end of October). PCT Chapter II applications had fallen by 7%. In view of the changes in the PCT procedure, a slowing of growth in Chapter II-related examining work was expected, but the number of requests was not expected to fall or even stagnate. Here, the year's-end workload figure was likely to be of the order of 42 000 files (33 700 at the end of October).
The number of oppositions was up by more than 50%, as a direct consequence of the considerable rise, for over a year, in the number of granted patents. The opposition workload was expected to total 2 300 files, 800 more than in 2001 (1 900 at the end of October).
The number of technical appeals had fallen. The total was expected to reach around 1 220 by the end of the year, against 1 315 in 2001 and the forecast of 1 320. Taking legal and disciplinary appeals into account, a total of 1 260 appeals were expected to be filed in 2002 (1 130, of which 1 090 were technical, at the end of October).
The Office had registered a rise of more than 15% in the number of requests for extension, and expected to receive around 25 800 extension fees by the end of the year.
With 12% growth in overall output, the target of 144 100 files in search would nearly be met. Production was expected to reach 143 000 files, 46% of which would have been completed under BEST and 1% by national offices.
In 2001 the Office had carried out 127 400 searches, whereas 118 700 searches had been completed by the end of October 2002.
More than a quarter of this year's searches had been performed by examiners in Munich. This had made a significant contribution to cutting the search backlog, even if it had a certain negative impact on examination.
The number of final actions in the EP examination procedure was up by 19% over last year, but remained below the revised target of 77 600 set at the start of the year. A total of 66 000 final actions, nearly 11 000 more than in 2001 (54 900 at the end of October), was expected. As well as freeing up an appreciable amount of examining capacity, the streamlined PCT Chapter II procedure had made it possible to complete a larger number of files. By the end of the year, around 53 000 of these PCT Chapter II examinations were expected, compared with 41 000 last year and 47 600 in the revised forecast for 2002 (43 700 at the end of October).
A year's-end total of 119 000 completed final actions could therefore be expected, an increase of 23% over 2001 (98 600 at the end of October).
The recent trend of an increased number of published granted European patents continued throughout 2002 with double-digit growth. The 2002 total of granted patents was expected to reach 47 400 (39 850 published patents at the end of October), 37% more than in 2001 and 72% more than in 2000. This was the highest number of published granted patents ever issued by the EPO.
The Boards of Appeal were expected to settle 1 390 technical appeals by the end of the year, almost 170 more than the number of new appeals filed. The number of technical cases settled had risen by around 16% vis-à-vis 2001 (1 160 at the end of October).
Search backlogs at first continued growing in 2002, but levelled off over the last four months and were likely to settle at around 81 000 at the end of the year (65 900 at the end of 2001).
The European search backlog stood at 47 100 at the end of October and was expected to reach around 47 500 by the end of the year (41 000 at the end of 2001). However, the Office's backlogs in search were attributable to three industrial sectors, namely measuring/optics, computers and audio/video.
The backlog in substantive examination was expected to reach around 78 000, a rise of 15%, by the end of the year (74 700 at the end of October). The increase in the backlog in this field was mainly due to the shift to search work which had taken place in DG 2.
The Boards of Appeal were expected to have around 3 140 appeals pending at the end of the year, 5% less than at the end of 2001 (3 245 at the end of October). The backlog in appeals stood at 1 200 at the end of October.
The measures for mastering the workload which had been implemented or were in preparation - in particular the new PCT Chapter II arrangements, the introduction of BEST and the streamlining of procedures - were aimed at eliminating the backlogs in most of the joint clusters by 2004 for search and 2007 for examination.
In CA/79/02 the Office had presented general principles for restructuring DG 1/DG 2, in view of BEST, into so-called "joint clusters". Since then, DG 1/DG 2 management had initiated further action to implement the new structure. Along with the implementation of BEST, this restructuring was a very important move which allowed for better work monitoring and management per DG 1/DG 2 joint cluster. Currently, working methods were being harmonised between DG 1 and DG 2, and common planning had taken place at the level of each joint cluster. A follow-up mechanism for the assessment of workload, production, stock and backlog for each such unit was currently being implemented.
The extension of BEST in DG 1 was proceeding according ie to the five-year plan 2001-2005 for full BEST deployment. By the end of 2002, about 900 (63%) DG 1 examiners would be working in BEST mode. Some had already started handling opposition files. In 2002, more than 400 DG 2 examiners had joined BEST, meaning that around 1 200 (ie 70%) were working under BEST conditions. DG 2 was expected to produce about 40 000 searches in 2002, more than double the 2001 total.
One of the Office's prime objectives was to set patent protection standards which met the needs of the users of the European patent system. With that in mind, surveys were conducted among applicants every year to enable them to say how satisfied they were with search quality and indicate their needs.
These surveys were now conducted for the industrial sectors covered by a joint cluster. The response level remained high, and the overall impression was positive for all the industrial sectors consulted. However, it also seemed that applicants expected improvements in the speed of search report publication, in search report clarity and in uniform handling of applications. Moves to raise awareness of these issues were being organised among examiners.
The Harmonisation and Quality Directorate in DG 2 had recently completed a report on the survey on Effectiveness and Efficiency in Substantive Examination. This survey was designed to detect areas of potential improvement, and presented a detailed picture of the essential aspects of the European examination procedure.
In particular, the survey revealed a high level of effectiveness/efficiency, on the part of both the examiner and the applicant, once examination had started. It also revealed deficiencies in the form, at the time of filing, of applications of non-European origin. Measures to improve this situation were necessary.
The results of the survey showed great potential for improvement through the universal introduction of BEST, thus confirming the wisdom of launching the BEST programme. The survey also showed that further gains could be achieved by issuing a detailed first communication together with the search report. This would provide more extensive, accurate and pertinent information to the applicant about the probable outcome of his application at a much earlier date, leading to a reduction in the number of requests for examination and an increase in the number of direct grants.
On 1 October 2002 a new Board of Appeal, 3.3.8, Biotechnology, had taken up its duties. The number of Technical Boards of Appeal had thus risen to 20.
The 2002 edition of the "Ancillary Regulations to the EPC" had been published in July, a collection of important secondary legislation to the EPC which had been produced by the Legal Service of DG 3 for over ten years.
The report on the Case Law of the Boards of Appeal during 2001 had been published in October as a "Special Edition" of the Official Journal.
A referral under Article 112 (1)(b) EPC to the Enlarged Board of Appeal to consider two questions concerning the delegation to formalities officers of individual duties of the EPO's opposition divisions was pending as case G 1/02.
The Boards of Appeal had received a high-level visit from China and a delegation of judges and patent office officials from Tajikistan.
In 2002, the EPO had continued to pursue its strategic objectives through implementation of automation systems.
Stability, reliability and availability of automation systems were key objectives, in pursuit of which improved performance monitoring and management of user support had been put in place. Work continued on the implementation of service level agreements.
Security measures had been increased to protect the Office from virus and other cyber attacks. Special attention was also being given to disaster fallback and recovery.
The EPO's range of e-business products and services continued to grow. The Online Filing software now supported both new PCT applications and European phase entry. A total of 2 500 filings had now been received.
The epoline® Online European Register had been operational since April 2002 with an average of over 90 000 register requests made per week.
Online File Inspection was consulted over 4 000 times per day, 50 times the number of paper-based file inspections.
About 750 new users had received hands-on training at user-day events and been provided with all the epoline® products.
The Office had created a new directorate in Information Systems to improve the technical support provided to national offices in the area of infrastructure, eg networks, and in the implementation of automation systems, eg epoline®, PHOENIX, EPOQUE and esp@cenet®. This activity formed part of the Office's ongoing co-operation programme.
Efforts continued to maintain and extend the completeness of the Office's databases and the electronic tools needed to access them. The EPO was one of the world's leading providers of technical information with the goal of acquiring bibliographic data for all patent documents published in the world. Adding more searchable backfile data to the full-text databases, expanding the volume of non-patent literature searchable under EPOQUE, and developing tools linking the NPL databases and the EPO internal databases enabled more thorough and efficient searches, thereby reducing double handling of documents.
As in previous years, recruitment had progressed very well and had been extended to all new member states. In 2002, some 440 offers of examiner posts had been made, and 301 examiner vacancies had so far been filled in DG 1 and DG 2. A further 104 candidates had accepted a job offer to take up their duties in the coming months. In total, 9 300 applications had been submitted in 2002, and 980 candidates interviewed. If offers already made were included, 275 examiner posts were expected to be vacant at the end of the year.
The Office's financial situation remained healthy throughout 2002. Total income was forecast to be EUR 844m, 2% up on 2001. Expenditure was expected to increase by 19% to EUR 795m.
The operating result for 2002 was expected to be close to EUR 50m, and net working capital was estimated to reach around EUR 460m.
As previously reported, the Office had changed its official currency to the euro without any problems, and had successfully implemented a new financial system.
On 1 July, Bulgaria, the Czech Republic, Estonia and Slovakia had joined the Organisation. Slovenia had joined on 1 December 2002, to be followed by Hungary on 1 January 2003 and Romania, probably on 1 February. The remaining countries would probably have joined by mid-2003. Talks had also taken place with Malta, which was due to join the European Union, probably in 2004, and under the acquis communautaire would need to accede to the European Patent Convention. This would bring the number of member states to 31 in the near future. Only Iceland and Norway, who were present at the Diplomatic Conference in 1973, would still have the right to accede to the EPC.
With the accession of five new contracting states to both the current and the revised version of the Convention, the process of ratification of the EPC 2000 had now started.
Work on the European Patent Litigation Agreement had continued in the sub-group of the Working Party on Litigation. In July 2002, the ten delegations active in the sub-group had met and been able to draw up an optional agreement, in "treaty language", which had been submitted to the full Working Party in December 2002.
The EPO acted as secretariat of the sub-group and substantial efforts had been made to ensure that this self-contained new international agreement setting up an integrated court system for the settlement of litigation concerning European patents was finalised in time in our three official languages.
A major achievement in reform of the PCT system had been the introduction of the Extended International Search Report, which would come into force on 1 January 2004. This, in combination with the prolongation of the time limit under Article 22(1) PCT, was expected to contribute significantly to the reduction in the number of requests for an International Preliminary Examination Report (IPER).
The 11th European Patent Judges' Symposium had been held in Copenhagen from 17 to 20 September 2002 with over 80 participants from member states and other countries.
Various subjects had been discussed, among them two topical issues, the protection of biotechnological inventions, including the scope of patents for genes, and the proposal for a European Patent Litigation Agreement. The event had also featured an interesting case study. The EPO intended to publish a special edition of its Official Journal with the papers presented and a detailed report on the proceedings.
The 11th edition of the EPC had been published in July. It included those amended provisions adopted by the Diplomatic Conference 2000 which were provisionally applicable.
The "Euro-PCT" Guide for Applicants had been updated to take account of the many changes to the PCT system adopted in 2001.
SACEPO, the Standing Advisory Committee before the EPO, had held its 33rd meeting in Munich in June 2002. Discussions had centred on PCT reform, the latest proposals on the Community patent, the Commission's proposal for an EC Directive on the patentability of computer-implemented inventions, and ongoing work on a European Patent Litigation Agreement.
The steady rise in the number of candidates for the European Qualifying Examination (EQE) continued, with 1 326 candidates sitting the examination (a 12% increase over 2001). The pass rate for first-time sitters had been 35%, which was no improvement over last year. The pass rate for candidates re-sitting the examination had also been low at 37%.
To facilitate learning and extend the range of possibilities for effectively preparing for the examination, an interactive part of the Compendium had been put onto a CD-ROM last year. The feedback from users had been very positive, and an updated version of the CD-ROM would be issued by the end of the year.
The number of professional representatives qualified to represent clients before the EPO was currently 6 850, including 400 Turkish patent attorneys and a further 130 from the new member states which had joined on 1 July 2002 (Bulgaria (16), Czech Republic (88), Slovakia (28)).
Together with the epi, the EPO had informed future member states in Eastern Europe on important issues concerning representation before the EPO.
The EPO's Brussels Bureau for Liaison with the European Union had been enhanced by the addition in June of one A-grade staff member based permanently in Brussels. The EPO had continued high-level contacts with the Commissioner and the Director General of DG Internal Market. Moreover, the EPO had continued to assist the Commission with a number of legislative projects as well as the 6th Framework Programme of DG Research/DG Enterprise.
The Trilateral Offices had met at the 20th Trilateral Pre-Conference and Conference, held in Vienna from 4 to 8 November. A symposium on "Mastering the Workload" had been held on 7 November, with several heads of office participating.
The Offices had focused their concerted efforts on mastering the workload in view of the growth in the number of applications of both national and regional origin, and under the PCT. They had presented their latest strategies and agreed to explore medium and long-term strategic solutions on a common ground.
Under the Latin American programme, promotion of the European patent system and its patent information activities had continued in the second half of the year in the shape of ELDIPAT, this year organised jointly with the Brazilian Patent Office in Rio de Janeiro. A seminar for Latin American judges and prosecutors, organised jointly with the Spanish Patent Office and WIPO, had been another highlight of Latin American co-operation.
With regard to Turkey, the EPO had signed a contract with the European Commission to support the Turkish Ministry of Justice in setting up specialised courts for the enforcement of intellectual property rights there.
In parallel with the accession of the first central and eastern European countries to the European Patent Organisation, close technical co-operation had continued between the EPO and all these countries, particularly with regard to the organisation of training seminars and specialist conferences, the translation of patent literature, and information systems support. Further assistance had been given to the Balkan countries, and in particular a regional EU-funded programme was being negotiated with the European Commission, to start early in 2003. This programme promoted the development of industrial and intellectual property protection by strengthening the administrative capacity of IP institutions and enforcement authorities, improving regional co-operation and further developing general awareness of IP rights in Albania, Bosnia and Herzegovina, Croatia, Yugoslavia and the Former Yugoslav Republic of Macedonia.
In China, the migration of EPOQUE to Java had been completed with EPO support. EpoqueNET China was now available to all examiners at SIPO. Training for the new system had been provided by the EPO, at both technical and user level.
In July, the EPO and SIPO had jointly organised a training seminar for new examiners. The seminar had been held at SIPO's Training Centre in Beijing and included participants from many other countries, including Croatia, Indonesia, Malaysia, Mexico, the Philippines, Thailand, Turkey and Vietnam.
With the horizontal elements of the EU-China IPR Co-operation Programme (training, for example) nearing completion, the EPO had now started implementation of the specialised
element focusing on patents, utility models and industrial designs.
In Asia, the EPO, together with the Intellectual Property Office of Singapore (IPOS), had organised the Europe-Asia Patent Information Conference I, EAPIC I, in September in Singapore. The conference-cum-exhibition, organised on the model of the Latin American ELDIPAT, had been a success, with the exhibition sold out and the conference attended by more than 200 participants. In co-operation with the Malaysian Patent Office's Intellectual Property Division, a regional ASEAN Workshop on Search and Examination in the Field of Pharmaceuticals had been held in October with participants from the entire ASEAN region.
With respect to the CIS countries, besides training seminars and the visit of a high-level delegation from Tajikistan to study the EPO's appeal system, a roving seminar promoting the Eurasian Patent Office had taken place in Paris, London and Munich in November, organised in co-operation with the French, German and UK national offices.
During the second half of the year, co-operation with South Africa had gained impetus: the EPO had participated together with OHIM in a roving seminar organised in four cities in South Africa by the South African Industrial Property Office (CIPRO) with the aim of promoting the use of patent information in the scientific community. It had been agreed to organise a forum for African and Arab countries jointly with the UK Patent Office in April 2003, as a follow-up to the Casablanca forum organised this year.
A workshop on "Institutional Capacities of IP offices in the Near East: Actual Situation and Perspectives" had been organised in Beirut at the end of October, together with ASIP (the Arab Society for Intellectual Property) and AGIP (Abu-Ghazaleh Intellectual Property). The delegations had come from Lebanon, Syria, Jordan, Egypt, Saudi Arabia, Libya and the GCC Patent Office, including the heads of all these offices.
With regard to the Common Software, since the summer of 2001 the EPO had been moving towards completion of the Java rewrite of the Common Software (CS). A framework contract had been awarded to Jouve, covering 2003 to 2005. Luxembourg had elected to be the pilot office for the new JCS.
Two other member states, Greece and Monaco, had each entered into full productive use of the CS during 2002, the latter having recently completed the backlogging of all existing data for all patent and trade mark domains.
The POLite software development approach, for which ARIPO was the pilot office, was aimed at patent and trade mark administration, but was inherently far simpler than the CS. A first product developed using this approach had now been accepted at ARIPO and would shortly enter into full productive use following the completion of user training.
The EPO International Academy's planned activities had run according to schedule. In the second half of 2002 there had been nine training and educational activities, most of them based on extensive co-operation, eg with offices of the member states. The successful seminar on "Information technology concepts and infrastructures for small and medium-sized patent and trade mark offices" had been organised jointly with the Hellenic Patent Office in Athens from 16 to 20 September. Since June, 222 trainees had attended the various seminars and workshops, and in all there had been 696 participants in 2002. The recent "International Forum on the protection of computer-related and business model inventions" had provided updated information for the European user community and an excellent forum for the exchange of information and expertise, for instance with experts from the JPO and the USPTO.
The EPIDOS Annual Conference 2002 had been held in Copenhagen in October. The Danish Patent and Trademark Office had been closely involved and played a major part in organising the event.
The usage statistics for the esp@cenet® service continued to show consistent growth, with a 50% increase over the past year. At the EPIDOS Annual Conference in Copenhagen, the EPO had announced that the data in the INPADOC databases would soon be available via esp@cenet®. A new interface for esp@cenet® had been released with INPADOC family and legal status information. The number of facsimile pages downloaded per week regularly exceeded 3 million, with over 12 000 unique users of the Level II services every working day.
Within the framework of the INPADOC conversion project some milestones had been passed since the last report. Two online applications were currently in the alpha-test phase: one application for the general user via esp@cenet® Open Patent Services and one graphical user interface application for the EPO search team in Vienna.
The data of two more countries, the Russian Federation and Uzbekistan, had been added to the INPADOC legal status database. These countries now regularly sent data on national phase entry of international applications. The bibliographic database currently covered 71 countries, the legal status database 42 countries and patent issuing authorities.
In the area of Japanese patent information services, the EPO had held its first User Meeting on Japanese Patent Information in Vienna on 21 and 22 November, attended by over 40 people. The JPO, JAPIO and the PATOLIS Corporation all had sent speakers. The EPO's role was to provide a European service to help users interpret this complex data.
In the context of co-operation with member states, EPO staff had already visited three of the four new members - the Czech Republic, Estonia and the Slovakia - and a visit to Bulgaria was planned. The aim of these visits was to introduce these offices to the EPO's co-operation policy.
In the field of ESPACE CD-ROM products, ESPACE GlobalPat was again in full production, and had been greeted enthusiastically by users. A number of national offices and commercial companies were producing their own CD-ROM products using the MIMOSA authoring software and the EPO had established a "developers' website" for these users.
Once the President had concluded his activities report, the Council addressed several major issues.
The Council appointed Mr Jean OLINGER (LU) as a member of the Board of Auditors for a further five-year term.
The Council unanimously approved a draft decision to adopt the Implementing Regulations to the European Patent Convention 2000.
The Council unanimously approved draft decisions amending the Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal.
The Council unanimously approved a draft decision renewing the Research Fund of the European Patent Organisation.
The Council approved the 2001 accounts and, after discussing the report by the Board of Auditors and hearing the opinion of the Budget and Finance Committee, discharged the President in respect of the 2001 accounting period.
Finally, the Council adopted the 2003 budget, totalling EUR 1 057 830 000. Provision was made in the table of posts for 6 522 employees, an increase of 544 posts over 2002.