BR-Documents : art. 10471 /en

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• Display Name : BR 104 e 71
• Item Number : 10471
• Folder / Language : English
• Language Tag : #English
• Original PDF : BR-Documents/English/BR-Documents 101-125/BR-Documents 104 e 71/BR 104 e 71.pdf

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Europäisches Patentamt European Patent Office Office européen des brevets

Travaux Préparatoires EPC 1973

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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INTER-GOVERNMENTAL CONFERENCE FOR THE SETTING UP OF A EUROPEAN SYSTEM FOR THE GRANT OF PATENTS

Luxembourg, 20 April 1971 BR/104/71

- Secretariat -

NOTE

from the Netherlands delegation on the results achieved by Working Party II

Item 4b of the Provisional Agenda for the 4th Meeting of the Inter-Governmental Conference held from 20 to 30 April 1971 at Luxembourg (BR/98/71 of 18 February 1971)

BR/104/71 gc

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NOTE

from the Netherlands delegation on the results achieved by the Working Party II (Item 4b of the Provisional Agenda of 18 February 1971, BR/98/71)

The organisation and its various institutions

The texts drawn up are not clear with regard to the position of the Administrative Council within the organisation. This lack of clarity emerges particularly in the use of the name "European Patent Office":

(a) which is sometimes used for the organisation as a whole, that is, including the Administrative Council (e.g. Article 35 a, paragraph 3B: the Administrative Council acts on behalf of the European Patent Office; Article 43: income and expenditure of the European Patent Office; Article 2 of the Protocol on privileges and immunities: the archives of the European Patent Office);

(b) but which appears to be used elsewhere solely for the executive body of the organisation, that is, excluding the Administrative Council (e.g. Article 30: the Administrative Council supervises the European Patent Office; Article 35 o, paragraph 2; the special Article 35 p included in addition to Article 35; Article 36, paragraph 1).

The Netherlands delegation bases its views on the principle that the Inter-Governmental Conference is preparing the setting up of one single international organisation, not two: a European Patent Office and an Administrative Council. Article 4 names this organisation the "European Patent Office". The Administrative Council is one of the institutions of this Office.

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Article 32 bis: For greater clarity, the provision on legal capacity with regard to international law (at present contained implicitly in Article 35 a, paragraph 3) should be inserted here following the provision on legal capacity under national law (Article 32).

For example:

"(1) Where the provisions of this Convention provide for the conclusion of agreements between the European Patent Office and one or more States or an international organisation, such agreements shall be negotiated by the President of the European Patent Office in accordance with the instructions which the Administrative Council may give him.

(2) The agreements referred to above shall not be concluded until they have been approved by the Administrative Council.

(3) Such agreements shall be concluded by the signature, on behalf of the European Patent Office, of the President of the European Patent Office or of any other person appointed for this purpose by the Administrative Council and given full powers by the Administrative Council".

Article 40: This Article should be transferred to the Chapter on the status and general organisation of the European Patent Office. In addition, paragraph 2 of this Article should refer to "damage caused by its institutions or by its employees".

Article 35 p is a superfluous addition to Article 35 and could be deleted.

The Convention should refer not to "agreements concluded with the Administrative Council", but to "agreements concluded with the European Patent Office". See Article 35 d, paragraph 2, Article 119, paragraph 2, Article 121 a, paragraphs 1 and 2.

BR/104 e/71 lb

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Article 35f: A provision should be inserted to cover interim arrangements, for example:

"(3) If the President or the Vice-President ceases to be a member of the Administrative Council, the Administrative Council shall appoint a new President or Vice-President for the remainder of the term of office".

Article 35m, paragraph 2: The Netherlands delegation has objections to the reference to the execution of "certain formalities" required by virtue of a national constitution. It is not clear what formalities are meant, apart from which the national authorities could make use of this reference at any time to call in question the Administrative Council's power of decision. It is proposed that paragraph 2 be deleted.

Article 35m, paragraphs 1 and 3: The Netherlands delegation does not consider the condition of unanimity to be expedient (paragraph 1). It also considers that serious objections can be raised against the words "the unanimous vote of the Contracting States", as the States not represented are thereby included. It considers that a majority of three-quarters of the votes of the States represented, as in paragraph 3, is sufficient for the decisions covered by paragraph 1; moreover, the wording "majority of three-quarters of the members present and voting", which is more explicit, would be preferable (see also Article 162, paragraph 2).

BR/104 e/71 prk

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Article 42a: Under "the European Patent Office's own resources", the yield of an internal tax which may have to be introduced should also be mentioned.

Implementing Regulations

According to Article 35a, paragraph 1A, it would appear that these Regulations are not to be drawn up by the Administrative Council, but by the Inter-Governmental Conference. If it is intended to annex the Regulations to the Convention, this should be stated in the Convention, for example in Article 72 or in the Final Provisions.

Final Provisions

Article 162, paragraph 2: The reference to Article 35h and the provision governing the required majority may be deleted. These points are dealt with elsewhere.

Article 162, paragraph 4(b): If this provision is to be retained it should, for reasons of clarity, read as follows: "... as have not ratified or acceded to the revised text by the date on which this text enters into force, shall cease ...".

The Netherlands delegation considers that it will be necessary to ensure that the original text and the revised version of the Convention will not be valid simultaneously. It nevertheless points out that the way in which this idea is expressed in the draft text provides for a very severe sanction in respect of the States which for any reason - and although they intend to accept the revised text -, do not do so within the period laid down. The delegation prefers another system: "the States which have not notified their denunciation of the Convention on the date laid down under a shall be bound by the revised text of the Convention".

In this connection see the second observation on Article 171, paragraph 1.

EP/104 e/71 prk

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Article 167, paragraph 4: May be deleted; its content should be transferred to Article 173.

Article 168: The Netherlands delegation proposes that the end of paragraph 2 should read as follows:

"... was seized of the dispute, any party to the dispute may submit it, in a request, to the decision of the International Court of Justice".

Paragraphs 3 ff. may be deleted.

The delegation is of the opinion that disputes arising from this Article will not be concerned with questions involving patent law for which arbitration by patent law experts might be desirable. Provision is made for a special procedure for disputes concerning this last category of problems (see Articles 53 ff.). Any disputes which may arise between the States regarding the interpretation or application of the Convention can be quite easily settled by the International Court of Justice. This also means that procedural difficulties in the event of a dispute arising between more than two States, and for which the draft text of paragraph 3 does not provide a satisfactory solution, will not be governed by this Article, but will be dealt with by the International Court of Justice itself in accordance with its normal procedure.

Article 169: The text would be clearer if this provision were to mention the Articles under which reservations are allowed, (Article 258 ? only) or if the content of these Articles were to be inserted into Article 169.

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(c) all reservations and all withdrawals of reservations made pursuant to the provisions of (Article 158/169), (d) all declarations or notifications received pursuant to the provisions of Article 167, (e) all dates on which this Convention enters into force, (f) all denunciations received pursuant to the provisions of Article 171 and the dates on which they will take effect.

(3) The Government of ... shall register this Convention ... etc.".

BR/104 e/71 gc