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== Metadata ==
* '''Display Name''' : M 165 K
* '''Item Number''' : 165
* '''Folder / Language''' : English
* '''Language Tag''' : <nowiki>#English</nowiki>
* '''Original PDF''' : <code>M-Documents/English/M-Documents 151-175/M-Documents 165 K/M 165 K.pdf</code>

== Contenu ==

[p.1]

Europäisches
Patentamt
European
Patent Office
Office européen
des brevets

== M 165 K ==

== Travaux Préparatoires EPC 1973 ==
== Munich Diplomatic Conference ==

'''Comment:'''

The collection represents purely an internal research tool for the purpose of Directorate Patent Law of the European Patent Office. No guarantee can be given for its completeness or correctness.

The documents produced before 1969 cannot be provided in English as this was not an official language in the period before that date. These documents therefore are provided in French and German.

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== MUNICH DIPLOMATIC CONFERENCE ==

FOR THE SETTING UP OF A EUROPEAN SYSTEM FOR THE GRANT OF PATENTS

- 1973 -

Munich, 4 October 1973

M/165/K

Original: German

== CONFERENCE DOCUMENT ==

Drawn up by: Mr van Benthem, Voorzitter van de Octrooiraad, Den Haag
- General Rapporteur of the Conference

Subject: General report on the results of the Conference

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== GENERAL PAPERS TO THE PLENARY ==
OF THE UNITED STATES OF AMERICA

On Monday 10 September the Plenary of the Munich Diplomatic Conference set up a Committee of the Whole and three Main Committees to examine the texts of the Convention which had been drawn up and, in addition, a Credentials Committee and a Steering Committee responsible for the progress of the Conference.

Main Committee I began its work on Tuesday 11 September and met up to and including Saturday 25 September, i.e. for almost three weeks, with Dr Haertel, President of the German Patent Office, in the Chair. The Committee concerned itself with the provisions relating to patent law proper of the design of the European Patent Convention and its Implementing Regulations, with the Protocol on the Definition of Decisions in respect of the Right to the Right of a European Patent, with a Recommendation on preparations for the opening of the European Patent Office as well as with a Recommendation on the training of its staff.

Main Committee II met from Tuesday 11 September until Saturday 22 September, i.e. for almost two weeks, under the Chairmanship of Mr Savage, the President of the French Patent Office. During this time the Committee examined the general and institutional provisions of the Convention, the Protocol on the Centralisation of the European System and on its Introduction and the Protocol on Privileges and Immunities of the European Patent Organisation.

Main Committee III discussed the financial provisions of the Convention on Monday 24 and Tuesday 25 September, i.e. for two days, under the Chairmanship of Mr Armitage, the President of the British Patent Office.

X/103/1. kin/10/62

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The Steering Committee, which consisted of the Chairmen of the three Main Committees, the Secretary-General of the Conference and its General Rapporteur, met for one hour on four occasions under the Chairmanship of Dr Haertel to discuss the organisation and the progress of the Conference; this task was not however difficult, firstly because of the excellent preparation of the Conference by the Government of the host country and secondly because of the efficient Chairmanship of the three Main Committees.

Finally, the Credentials Committee met three times in order to examine the full powers of the Government Delegations and the letters of appointment of the Observer Delegations. The results of the work of the three Main Committees and the Credentials Committee were forwarded to the Committee of the Whole, which met from Monday 1 October until the morning of 4 October, i.e. for four days, with Dr Haertel in the Chair. The Committee of the Whole concerned itself primarily with examining the results of the work of the three Main Committees which were forwarded to it after the Drafting Committees of the three Main Committees had examined the texts as to drafting and after the General Drafting Committee had carried out the final drafting.

The result of this examination was that a unanimous decision was taken to forward a complete text amended on points of detail, of the European Patent Convention, its Implementing Regulations and the Protocols to the Plenary.

The Committee of the Whole also concerned itself with:

1. a report of the Credentials Committee,
2. a discussion on the organisation of the planned European School in Munich and on the building planned for the European Patent Office in Munich, and
3. a discussion of the programme and the organisation of the Interim Committee to be set up for the preparation of the opening of the European Patent Office.

M/165/K kin/HM/hbb

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You now have before you the texts, unanimously approved by the Committee of the Whole, of a European Patent Convention comprising 178 Articles, of the Implementing Regulations comprising 106 Rules, and of the relevant Protocols.

The several weeks of work, especially on the part of Main Committees I and II, might lead one to think that the text of the Convention and its connected documents, as submitted by the Luxembourg Inter-Governmental Conference to our Diplomatic Conference, have been amended to a considerable degree. Nothing, however, is further from the truth. The drafts prepared by the Luxembourg Inter-Governmental Conference were the result of intensive work under the excellent supervision and guidance of Dr Haertel, extending over more than a decade, which involved not only Government delegations but also representatives of the interested circles in Europe. This intensive work is reflected in a well thought out draft of a modern body of European patent law for the grant of European patents. This draft was so well prepared that its essential parts were retained unchanged by the Diplomatic Conference.

The hard work at this Diplomatic Conference was thus mainly confined to resolving outstanding problems of detail. I shall confine myself in a brief survey to the most important amendments and would refer the reader interested in the details to the excellent reports drawn up by the rapporteurs of the three Main Committees, Mr Brändli, Mr Bowen and Mr Fressonnet. I would first of all like to make some general observations:

Anybody today applying for a patent for an invention which he has made is required to file a separate application for that invention in each country in which he has an economic interest. In view of the varying number of patent applications and the present state of international co-operation in Europe, especially in this field, this is becoming an ever more difficult problem. Thus the Convention before you provides for European procedures for the

K/165/K ley/KM/mb

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grant of European patents by a European Patent Office on the basis of European patent applications filed with it. The European patent granted as a result will produce its effects in all the Contracting States designated by the applicant. The patent will continue to be subject to national law and will thus have the effect of a bundle of national patents but these national patents will at least have a uniform, examined content vis-à-vis all the designated States. The patent grant procedure consists of three stages.

Firstly, upon filing, the application is examined as to formal requirements, searched as to novelty and then published, together with the results of this search in the form of a European search report, for the purposes of public information. Subsequently, in the second stage of the procedure, and at the request of the applicant, the actual procedure for grant is carried out; this involves examination of the application as to the substantive requirements for patentability laid down in the Convention, entailing an examination as to novelty and in particular an examination of the actual inventive step which the application represents. This procedure will then either give rise to the grant of a patent with the application usually having been amended, or, in a certain number of cases, to the application being refused. In the third stage of the procedure, third parties may, within a period of nine months of the grant of the patent, file an opposition against it which, after examination by the European Patent Office, will result in the patent being either revoked or maintained.

At each stage of the procedure there is a right of appeal against decisions of the departments of the first instance to an appeal instance of the European Patent Office.

Having described the basis of the Convention, I shall now deal briefly and in greater detail with the amendments made by the Diplomatic Conference. I have arranged my comments according to the four main parts of the European Patent Convention, i.e.:

1. the European Patent Office;
2. substantive patent law;
3. procedure up to grant;
4. requirements of the European patent application.

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(a) First the European Patent Office. According to the draft submitted to the Diplomatic Conference, the European Patent Office will have its seat at Munich but it will also have a branch at The Hague. The Office at Munich will be responsible for all the examination under the second and third stages of the procedure, while it will be incumbent upon the branch at The Hague to carry out the first stage of the procedure. According to the draft, the branch would deal only with the examination as to formal requirements of European patent applications and their publication, but would work in liaison with the International Patent Institute at The Hague, which has already for many years been searching patent applications as to novelty, on behalf of its member countries and to which searches in respect of European patent applications would be transferred. At the same time however, the Protocol on Centralisation of the Convention provides for the International Patent Institute to be incorporated into the European Patent Office, which would mean that a self-contained unit of the European Patent Office would be created at The Hague which would be responsible for the whole of the first stage of the European procedure mentioned above. This concept has been incorporated in the final text of the Convention in the sense that reference is now no longer made to the transfer of search tasks to the International Institute at The Hague, but to the fact that the incorporation of the International Patent Institute into the European Patent Office will take place before the opening of this Office, with the consequence that searches in respect of European patent applications will also be carried out by the European Patent Office itself, that is to say by the branch at The Hague.

(b) The European system for the grant of patents is based on the centralisation both of search as to novelty and of examination at the European Patent Office. One certainty is that the introduction of the European procedure will mean a reduction in the activity of national patent offices, because a steadily increasing number of applicants will go over from the national to the European procedure. In order to facilitate the adaptation of these national offices to the new situation, provision has been made in the Protocol on Centralisation for a transitional period of 15 years, during which time it will be possible, in respect of a maximum of 40% of

M/165/K son/HM/dg

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European patent applications for a part of the examination, i.e. the second stage of the procedure with the exception of the decision to grant a patent, to be transferred to the national offices of the Contracting States on a decision of the Administrative Council. The position of the British Patent Office in particular is borne in mind here. This possibility previously existed only with respect to examination. Now however, in the course of this Diplomatic Conference, this possibility has been extended to searches in respect of European patent applications for countries which dispose of adequate searching facilities but basically only those in which the official language is one of the three official languages of the European Patent Office. This in particular takes Austria into account.

It is intended that during the transitional period the transfer of duties in accordance with these provisions should be gradually phased out. It will always be open to the European Patent Office, once the transitional period is at an end, to conclude working agreements with national offices for transferring tasks in the framework of the European procedure, but the only decisive factor here will be the interests of the Office itself, for example if it is no longer able to cope with its work in a satisfactory manner for lack of staff.

(c) The search as to novelty in respect of European patent applications will be carried out at the European Patent Office using technical documentation available in German, English and French, but in principle, for the time being at any rate, not documentation in other languages of the participating countries. In anticipation of a planned extension of material to appropriate documentation in the languages of other Contracting States it is now provided that the sub-office to be set up in Rome and national offices of Contracting States which have a language other than one of the official languages of the European Patent Office, particularly the Scandinavian countries, will be able to carry out additional searches, using documentation at their disposal in their own languages, in respect of European patent applications submitted by their nationals or in respect of other European patent applications, should the applicant so request.

M/165/K son/HM/dg

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(d) The financial provisions of the Convention are based upon the assumption that the European Patent Office will pay for itself in the long term, i.e. that its expenditure will be covered partly by the fees levied by the European Patent Office itself, and partly by a portion of the renewal fees for European patents which will be required of patentees by each State for which the patent is valid, in accordance with its national provisions. However, during a transitional period which will allow the European patent system to get under way, the Contracting States will have to pay financial contributions according to a scale laid down in the Convention; this scale was discussed in detail at the Conference but was not amended. The financial provisions make it likely that the European Patent Office will be able to balance its budget through its own resources in the tenth year of operation, and it is planned that the amounts of the fees will be such as to allow the Contracting States' special financial contributions to be gradually repaid with interest.

(e) The provisions of the Convention and of the Implementing Regulations which deal with professional representation before the European Patent Office lay down comprehensive arrangements for European professional representatives, with a European qualifying examination and some form of disciplinary power the details of which remain to be worked out and which will apply only after the end of a transitional period. The principles of the arrangements for professional representation were discussed in detail with the interested circles but were not amended during the Conference. However, a few changes were made to the representation arrangements which are to apply during a transitional period; these were based on the provisions of national law in view of the present differences therein and the intention of preserving acquired rights.

Basically, professional representatives who are entitled to act as such before the national patent office of any of the Contracting States during this transitional period will be entitled to do the same before the European Patent Office, subject to certain conditions. It was initially envisaged, however, that any restrictions on representation under the national law concerned should also apply in proceedings before the European Patent Office.

M/165/K 1or/AH/hbb

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The Conference considered that these restrictions were justified in national proceedings only and could therefore be discarded in respect of the European proceedings. It also considered that the provision whereby, during the transitional period, entitlement to act as a professional representative before the European Patent Office was dependent upon entitlement to so act before a national patent office, was justified during the transitional period only; for this reason it was laid down that all representatives entitled to act in the European proceedings during the transitional period would continue, after the expiry of this period, to be entitled to act as European professional representatives before the European Patent Office irrespective of their national entitlement. The Conference also laid down that professional representatives would be allowed to establish a place of business, for the purpose of exercising their profession before the European Patent Office, not only in Munich and the Netherlands, but also wherever any part of the European proceedings would take place before a national authority on behalf of the European Patent Office.

Moving on to the provisions of the Convention dealing with substantive patent law, the only amendment made by the Conference in this respect was to lay down that if the subject-matter of a European patent is a process, the protection conferred by the patent is to extend to the products directly obtained by such process. As a result, the Convention here becomes involved with the rights conferred by a patent and so makes an inroad into national law, but such was already the case in respect of the conditions for patentability and the range of patentable inventions, which form the basis not only for the grant of European patents, but also for the validity of the granted patent in national proceedings. In order to make accession to the Convention easier for those States whose level of economic development would not allow them to adapt to the above-mentioned provisions, the possibility was provided of making reservations in respect of a transitional period. The Diplomatic Conference reconsidered the reservation option and extended it in three respects. First of all, the right to provide that European patents for pharmaceutical and food products as such are to be ineffective

M/165/K lor/AH/bbb

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or revocable was extended to chemical products as such, but at the same time it was specifically stated that this reservation does not affect protection conferred by a patent in so far as it involves a process of manufacture or use of a chemical product. Secondly the Administrative Council of the European Patent Organisation was empowered to extend the transitional period for reservations (10 years after the entry into force of the Convention) by not more than 5 years at the request of the State concerned. Thirdly, it was laid down that reservations would remain effective, even after the expiry of the transitional period, in respect of patents granted on European patent applications filed during that period, with the result that reservations will be phased out only gradually. It is to be hoped that the Conference will not have troubled itself in vain with these additions in its attempts to make it easier for certain European States to become parties to the Convention.

With regard to the European system for the grant of patents itself, while many changes in non-essential details were introduced, only two changes are worthy of mention in this general report. The first concerns a deletion by which a source of complication was removed, namely, the fee for any supplementary searches as to novelty necessary in the procedure. The second change concerns an applicant for or proprietor of a patent who has been prevented from observing a time limit vis-à-vis the European Patent Office. He can now request restitutio in integrum not only in cases of force majeure but in all cases where in spite of the exercise of all due care, he is prevented from observing a time limit.

Finally, the Diplomatic Conference also introduced some changes of detail in the requirements of European patent applications. It has now provided unequivocally that the European patent application may be filed either at the European Patent Office at Munich or at its sub-office at The Hague. The increased recognition of the inventor's legal position is also important. This has been achieved by not only requiring the applicant to mention the inventor

K/165/K hai/HK/mab

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in addition, by requiring any applicant who is not the inventor, or not the sole inventor to supply a statement on the legal laws of the acquisition of the invention. The obligatory forwarding of this statement to the inventor is designed to protect any rights possessed by the latter. Moreover, the Conference dealt thoroughly with the problem of European patent applications concerning micro-organisms, the source in particular of many pharmaceuticals. The result is a detailed provision, which is as well-balanced as possible, and which, while protecting the rights of the public by providing for the compulsory deposit of the micro-organism in a culture collection where it is available to the public at the time the application is published, also, secures the rights of the applicant for or proprietor of the patent by rules to prevent illicit use of the micro-organisms thus made available.

Thus, a Convention on the Grant of European Patents has been prepared which is the result of years of co-operation by persons from many European countries. The continuation of this work at the Diplomatic Conference has removed the last remaining defects. For the completion of this work we are indebted to many people. Firstly, thanks are due to the experts of the Government Delegations and to the interested circles, who, though aware that it entailed a sacrifice of national sovereignty and of their sphere of work, created the Convention in an enthusiastic spirit of European collaboration. However, to one man in particular belongs the merit of having inspired them in this undertaking, namely, to Dr Haertel, a convinced and ardent European, who right from the start guided the negotiations in a manner admired by all. Finally, the Convention would certainly not have been completed were it not for the hard work of the silent helpers in the background, the staff of the Secretariat of the EEC Council of Ministers in Brussels.

It is therefore right that we should now adopt the Convention, a system of European patent law, which will determine the fate of patents in Europe for many years to come and I would now recommend you to do so.

[[Catégorie:M-Documents]]
[[Catégorie:English]]
[[Catégorie:Article 165]]

M-Documents : art. 165 /en - Historique des versions

Arthur : Import automatisé depuis JSON (OCR M_v4)

Arthur : Import automatisé depuis JSON (OCR M_v4)