BR-Documents : art. 12471 /en

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• Display Name : BR 124 e 71
• Item Number : 12471
• Folder / Language : English
• Language Tag : #English
• Original PDF : BR-Documents/English/BR-Documents 101-125/BR-Documents 124 e 71/BR 124 e 71.pdf

Contenu

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Europäisches Patentamt European Patent Office Office européen des brevets

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

Brussels, 7th June 1971 BR/124/71

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GENERAL REPORT

ON THE OUTCOME OF THE 4th MEETING OF THE INTER-GOVERNMENTAL CONFERENCE FOR THE SETTING UP OF A EUROPEAN SYSTEM FOR THE GRANT OF PATENTS, HELD IN LUXEMBOURG FROM 20 APRIL TO 28 APRIL 1971

prepared by Mr J.B. VAN BENTHEM President of the Netherlands Patent Office (Octrooiraad), as General Rapporteur of the Inter-Governmental Conference

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I. Summary of the decisions of the Conference

1. After having admitted to the discussions the Principality of Monaco and Yugoslavia, thus bringing the number of European countries participating in the Inter-Governmental Conference to 19, the Conference examined the outcome of the work of the four Working Parties which it had set up. The meeting lasted nine days, during which time the Conference was able to cover all the points on its agenda, thanks to the willingness to co-operate shown by all the delegations, to the excellent guidance of discussions by the Conference Chairman, Dr HAERTEL and to the invaluable work of the Secretariat. The discussions finally gave rise to the following decisions of principle:

(a) The Preliminary Draft Convention establishing a European system for the Grant of Patents, submitted to the Conference for the second time in a redrafted and supplemented text, was adopted subject to a few adaptations for the purposes of a second publication to obtain the views of interested circles. In this connection, the Conference decided to hold a meeting at the beginning of 1972 at which the representatives of the non-governmental international organisations would be able to present their observations on this draft. Working Party I was instructed to continue its study of certain provisions of the Draft Convention.

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(b) The Preliminary Draft Implementing Regulations, which were submitted to the Conference for the first time, were adopted almost without amendment, for publication at the same time and to the same end as the Preliminary Draft Convention.

(c) The Preliminary Draft of the Rules relating to Fees, also submitted to the Conference for the first time, will be published at the same time; this publication will give the interested circles an idea of the various fees to be paid in proceedings for the grant of European patents as well as of the amounts of such fees.

(d) It was also decided that as a supplement to this information, explanatory reports on the above-mentioned drafts will be published.

(e) The Draft Protocol on the Privileges and Immunities of the European Patent Office was referred to Working Party II for further study in the light of comments put forward.

(f) The principles relating to the Staff Regulations of the European Patent Office and in particular the salary scales were approved by the Conference; Working Party III was, furthermore, entrusted with the study of a Pension Scheme.

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(g) The Conference took note of the report on the financing of the European Patent Office as well as of the implications for the States party to the Convention.

2. These decisions and in particular the adaptations made by the Conference to the Preliminary Draft Convention were the outcome of discussions during which the Conference settled a considerable number of questions. In the following chapters, we shall deal only with the main items debated: as far as possible, this report follows the order of the Articles.

II. Preliminary Draft Convention setting up a European system for the grant of patents

3. The Conference accepted the principle contained in Article 5 guaranteeing free access to proceedings for the grant of a European patent to any natural or legal person of whatever nationality. In adopting this position, account was taken, both of the interests of the Contracting States and of the fact that under Article 45 of the PCT, the filing of international applications as provided for in that Treaty gives access to regional patents only if the patents applied for pursuant to a regional patent treaty guarantee free access for patent applications.

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4. Discussion arose concerning Articles 9 and 10. It was recognised that paragraph 2 of Article 9, which specifies what may not be considered as an invention for the purposes of the Convention, would have to be studied in greater depth. The same applied to the link between that paragraph and Article 10(b).

5. The Conference accepted the rule contained in Article 11, paragraph 3, to the effect that, for the purposes of a European patent application, the entire contents of applications for European patents, filed earlier but published on or after the filing or priority date of the said application, were to be considered as comprised in the state of the art. The acceptance of this rule, which may appear strict, was greatly facilitated by fact of its attenuation by two other rules, those contained in Article 13 and Article 11, paragraph 4. Article 13 provides that the earlier applications in question are not to be considered in deciding whether there has been an inventive step and merely serve for the assessment of novelty as such. The rule contained in Article 11, paragraph 4, provides that the principal rule is to apply only when a Contracting State designated in respect of the later patent application was also designated in respect of the earlier patent application. If only a part of the States designated in the later parent application were designated in the earlier application, the applicant may, pursuant to Article 137a, split this application by submitting different claims according to the States designated. With regard to the problem of earlier applications, it appeared difficult to find a satisfactory alternative solution.

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7. The Conference was conscious that the so-called "maximum" solution, which excludes in particular the revocation of European patents on grounds other than those listed in the Convention, might seriously interfere with the national legislations of European States and consequently make accession to the Convention more difficult for certain of these States. The Conference however attached more importance to the juridical security which the maximum solution affords. However, in order to facilitate acceptance of the European system, it approved Article 158 which gives each Contracting State the possibility of making reservations with regard to the maximum solution, such reservations being valid for a maximum period of ten years, from the entry into force of the Convention. These reservations concern particularly the exclusion from protection of food and pharmaceutical products as such, since European patents granted for such products may be declared revocable or ineffective in the State concerned.

8. In view of the fact that for the purposes of an application for a European patent, the content of earlier patent applications published after the filing of the said application may not be considered in deciding whether there has been an inventive step (Article 13), the system of patents of addition laid down in Article 21 can only be justified through its implications as regards fees. This is the only aspect which could a fortiori justify the grant of a patent of addition - in the case of the term provided for in Article 21 being extended - following an application filed after publication of the parent patent. The Conference was not, for the time being, of the opinion that these considerations as regards fees were a factor justifying the extension of the term for the filing of applications for patents of addition. This extension was advocated by a section of the interested circles.

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6. Article 20a, providing for a uniform twenty-year term for the European patent as from the date of filing of the application, touches on the question of the "maximum solution" which, in accordance with the wishes expressed by the interested circles, was adopted by the Conference. Under this solution, the European patent, while merely constituting a bundle of national patents, is nevertheless subject as far as its validity and term are concerned, not to the provisions of national legislation, but to those of the Convention. It follows that in this respect the Convention constitutes a common legislation governing European patents after they have been granted and in this way extends beyond the framework of a common body of legislation affecting only the procedure for grant. In addition to Article 20a on the term of the patent, we refer to Article 133 which lays down the grounds for revocation of a European patent once granted; apart from the juridical security which these Articles provide for the European patent, it is to be hoped that they will have a harmonising effect on the national laws governing national patents granted at national level. It should also be noted that Article 2, also adopted by the Conference, makes it clear that otherwise, particularly as regards the content of exclusive rights, their infringement, licences and the collection of renewal fees, national patents granted according to the European procedure will remain subject to national law in the same way as other national patents.

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9. Under Article 22, the European patent application retains its unitary character for the purposes of European grant proceedings but, as an object of property (assignment and establishment of rights) constitutes a separate object in each designated State. In Article 22a, the Conference drew the consequence that such application will, as an object of property, be subject to national law in each designated State.

10. In accordance with the wishes expressed by the Conference, Articles 35aa, ab and ac provide an exhaustive inventory of all the responsibilities of the Administrative Council. This list involves repeating a certain number of responsibilities already provided for in other Articles, which has however been allowed in order provisionally to achieve a comprehensive view, in the Articles in question, of the powers of the Administrative Council. It seems possible that these Articles might be simplified in the final text of the Convention.

11. Article 35g provides that the Administrative Council may, in the event of there being at least eight Contracting States, set up a Board composed of five of its members. This Board may prepare Council decisions but, in accordance with the ruling of the Conference, powers may not be delegated to it by the Council.

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12. Article 35m deals with the rules for votes to be taken within the Administrative Council. As in the case of revisions of the Convention which, according to Article 162, must be adopted by a majority of two-thirds of the Contracting States represented at a Diplomatic Conference, the Conference wished to avoid giving the right of veto to each Contracting State. It therefore excluded any possibility of recourse to a unanimity rule for the purposes of voting Administrative Council decisions. Certain highly important decisions, including the amendment of the Implementing Regulations, the adoption or amendment of the Rules relating to Fees and the adoption of the budget of the European Patent Office, will require a majority of two-thirds of the Contracting States. All other decisions will be taken by a straight majority. For the purpose of determining such majority, only those Contracting States represented and voting will be taken into account. There is no cause to doubt that this arrangement will guarantee the Administrative Council's capacity to take decisions.

13. The interest of the Contracting States in the European Patent System varies from country to country, depending mainly upon the number of European patents applied for and granted in respect of the country in question. This variation is expressed in terms of the difference between the contributions payable - whether these be payments representing the renewal fees for European patents or the special contributions provided for in Article 42c. The Conference discussed whether this variation in interest should give rise to a certain weighting of votes in the decisions of the Administrative Council. Finally,

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a system of weighting on these lines was accepted and set out in Article 35n. It was, however, limited to a few major decisions liable to affect the contributions of the Contracting States, pending further examination of the weighting key.

14. As regards the final decision on any dispute between the European Patent Office and its employees, the Conference had a choice between an appeals committee, governed by a special statute, and the Administrative Tribunal of the International Labour Organisation which was already in existence. In the interests of unity of treatment and of jurisprudence, the Conference opted for the second solution in Article 39.

15. The Conference endorsed the important principle, set forth in Article 42c, that the sum of fees and of payments in respect of renewal fees should ensure the balance of the budget of the European Patent Office. It is however possible, and during the launching period of the European Patent Office even inevitable, that this balance may not be achieved. In that event, the same Article makes provision for the payment of special financial contributions by the Contracting States. On the other hand, as regards these special payments, these would merely constitute an advance; for Article 42c lays down that, as soon as the balance of the budget of the European Patent Office permits, these contributions are to be repaid from credits provided for that purpose in the said budget. The Conference

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considered various ways of fixing the special contributions and concluded that two methods appeared to be acceptable. In view of differences of opinion as to the acceptability of one or the other of these systems, the Conference decided to postpone taking a decision and provisionally to retain both systems as variants on Article 42c.

16. Article 64 concerning the filing of the European patent application was amended, in paragraph 2, so as to safeguard the public interests of the Contracting States, especially as regards their national defence.

17. A majority of the representatives of the interested circles advocated a rationalisation of proceedings from the filing of a European patent application to the transmission of the report on the state of the art. They threw doubt on the usefulness, at the time of filing, of an examination regarding obvious deficiencies in substantive law, as provided for in Article 77, and requested that the examination of filing formalities (Articles 66, 67, 68, 69a and 72) and the relevant search on the state of the art. The special search fee payable would then be abolished, while the filing fee might possibly have to be increased. The Conference, being informed by Working Party I that it was not yet in a position to undertake a detailed study of what was described as the "package" of questions, decided to abstain from taking up any position on the matter and instructed Working Party I to submit proposals to it in due course.

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18. The Conference adopted Article 69a which, like the corresponding PCT provision, lays down that the European patent application must include mention of the inventor in the event of the legislation of at least one of the designated Contracting States requiring that such particulars be provided in respect of national applications.

19. Article 75 stipulates that the declaration of priority must be made at the time of filing of the patent application. The Conference saw no sufficient reason why an extra term should be allowed for the production of this declaration but, with a view to warding off a difficulty referred to by the interested circles, it decided to instruct Working Party I to draw up a provision permitting the correction of inaccurate information.

20. In accordance with the provisions governing the international application provided for in the PCT, the Conference added to the conditions with which European patent applications must comply, the compulsory submission of an abstract thereof, to be used exclusively for technical information purposes; the definitive content of this summary is to be determined by the International Patent Institute (Articles 66 and 79, paragraph 3).

21. At its preceding meeting, the Conference had decided to review the question of the time limit for the submission of the request for examination, provided for in Article 38, in the light of the financial estimates to be presented by

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Working Party IV. These estimates however showed that, reckoning with forecasting data derived from existing deferred examination systems, a short period such as one of six months (tantamount to an immediate examination system) would involve far greater expense than a long period such as one of seven years (so-called deferred examination).

This was attributable to the different number of patent applications reaching the examination stage under each respective system, a factor directly determining the number of examiners required.

The Conference nevertheless decided, in line with the opinion of the interested circles, to fix as short a period as possible for the submission of the request for examination. This it did on grounds of juridical security, especially vis-à-vis the applicant's competitors. A six-month period was adopted, dating from the entry in the European Patent Bulletin concerning the publication of the report on the state of the art. Prolongation of this period to twelve months would however be considered. After all, the period would in certain cases be prolonged under the PCT to the advantage of those holding an international application (Article 117). There was, moreover, good reason to wonder whether a six-month period would in general give applicants sufficient time to weigh up their position after studying the report on the state of the art. However, whether the period were to be six or twelve months, the Conference by its decision excluded deferred examination, that is to say the possibility for applicants to postpone patent grant proceedings for long enough to be able to reconsider their economic interest in the patent being granted. At the

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moment, the Draft Convention provides only for the system of immediate examination, both in the case of the search and in the case of the subsequent examination, the only difference being that the latter is not automatic: the applicant must make a request for the purpose.

22. By lengthening in principle the period within which a request for examination may be made, Article 159 provides for the introduction of a system of deferred examination during a transitional period after the entry into force of the Convention, in order to facilitate the launching of the European Patent Office. However, it must be acknowledged that the Conference was not very sympathetic towards such a solution, since there was a danger that it might be extended beyond what could properly be called a transitional period. On the whole, there was a preference for the alternative solution for overcoming the difficulties of the launching period, contained in Article 156, namely, the progressive expansion of the field of activity of the European Patent Office to the various areas of technology. There were also some doubts about this solution, which might raise other problems, in particular that of the choice of the areas of technology. It was suggested that it might be possible to dispense with all transitional measures for the launching of the European Patent Office and to rely on the circumspection with which the applicants would begin to make use of the European procedure which, until a framework of precedents had been established, would contain many elements of uncertainty. As a counter argument, it was observed that the attitude of the applicants was too precarious a factor to make the successful launching

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of the Office dependent upon it. Provisionally the Conference decided to retain Articles 156 and 159 and continue examining them.

23. Taking into account the views of the interested circles, the Conference retained the opposition procedure after the grant of the European patent, adding inter alia Article 101a, which defines the grounds for opposition. These grounds are in fact similar to those for the revocation of the European patent. Having regard to the guidelines which emerged from the observations of the interested circles, it was decided to shorten the period for opposition from twelve to nine months (Article 101).

24. In Article 124, the possibility of converting European patent applications into national patent applications, which could give rise to legal uncertainty, has been restricted, as far as conventional law is concerned, to the exceptional cases referred to in Article 65, paragraph 5, and in Article 156. However, the Conference did not wish to prevent national legislations from going further and allowing conversion in all cases where the European patent application has been refused or withdrawn, or where the European patent has been revoked.

25. The Conference adopted Part VIII of the draft Convention which contains common procedural provisions of the European Patent Office. Attention is drawn to Article 148, which

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ensures that documents from files relating directly to the procedure for grant of the European patent and to opposition proceedings, are to be available for inspection by the public. An exception is made during the time preceding the publication of the European patent application, but even in this case, certain particulars concerning the application (number, date of filing, name of applicant, title of invention, names of designated States) may be inspected. In addition, any person who can prove that the applicant has availed himself of his application in respect of him, may obtain inspection of the complete file.

26. Part VIII also contains Articles 152-154 on representation and in particular, Article 152 on persons who are authorised to undertake representation before the European Patent Office. The Conference did not discuss the principles contained in this Article which are taken from previous drafts and were adopted primarily as a basis for discussion with the interested circles on a problem which is of particular concern to them.

27. The Conference also adopted the tenth and final part of the draft containing the final provisions. In this context, the Conference approved the important principle that the revision of the Convention does not require unanimity on the part of the Contracting States: such a revision could be validly adopted by a majority of three-quarters of the Contracting States represented and voting at a diplomatic Conference where at least three-quarters

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of the States which are party to the Convention are represented (Article 162).

One consequence of a revision, particularly in such circumstances, could have been the entry into force of the revised text for some of the Contracting States only, the others remaining bound by the old text of the Convention, so that both texts would be valid. At the same time, such a consequence, which might be acceptable in the case of other Conventions, such as the Paris Convention for the Protection of Industrial Property, would not be acceptable in the case of this Convention which entrusts the grant of common patents to a central Office in accordance with common rules: this Office could not apply two sets of rules to patent applications designating States which were party to the revised text and States which were party to the old text of the Convention. For this reason, the Conference approved two rules, one of which is severe, but inevitable: such States as have not ratified or acceded to the revised text of the Convention at the time of its entry into force shall cease to be parties to the Convention (Article 162, paragraph 4). The Revision Conference will have to take into account the implications of this rule when determining the date of the entry into force of the revised text. The second rule, contained in Article 171a, preserves acquired rights, in the case of Article 162, paragraph 4, being applied, but also lays down that patent applications or oppositions which are pending on the date on which a designated State ceases to be party to the Convention, shall continue to be processed in accordance with the revised text of the Convention.

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28. The Conference provided, in Article 168, that disputes between the Contracting States concerning the interpretation or application of the Convention, on which it has not been possible to reach agreement within the Administrative Council, may be brought before the International Court of Justice. This, of course, applies only in the case of disputes between States: internal procedural disputes will be settled by the European Patent Office.

III. Preliminary Draft Implementing Regulations to the Convention

29. Since the intention is to publish the Implementing Regulations as a first Preliminary Draft in order to ascertain the initial reactions of the interested circles, the Conference did not discuss the provisions of the draft in depth, but confined itself to answering a few questions raised by the Sub-Committee responsible for preparing the draft.

30. One of these questions concerned Re. Article 16, No. 1 bis which, if adopted, would involve amending Article 16 of the Convention, which deals with the judicial recognition of the entitlement of a third party to a patent application filed by a person not entitled to apply; in

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this case, the third party may file a new patent application for the same invention. This application then benefits from the dates of filing and priority of the previous application which it invalidates. Re. Article 16, No. 1 bis of the Implementing Regulations extends to opposition proceedings the rule contained in Re. Article 16, No. 1 providing for the suspension of proceedings for grant in the event of a claim of entitlement to the European patent; this presupposes an amendment to Article 16 of the Convention extending the provisions of this Article to opposition proceedings. The Conference provisionally retained Re. Article 16, No. 1, but without amending Article 16 of the Convention: it expressed doubt as to the advisability of extending the rule in Article 16 to a situation where there is already in existence a large number of independent national patents governed entirely by national laws, except as regards the objective conditions of their validity which are governed by the Convention. The question will therefore have to be re-examined; the Conference in fact asked for a re-examination of the whole of Article 16, which, it was observed, did not offer a solution to the case of a recognition of entitlement to a European patent which was only valid for part of the application or in respect of a part of the designated States. When Article 16 is examined, it will in any case be necessary to take into account the opinion of the Conference, which felt that the European Patent Office ought not itself to judge the entitlement to a patent, pursuant to Article 15.

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IV. Preliminary Draft of the Rules relating to Fees

31. Article 35aa of the Convention provides that the Rules relating to Fees will be adopted by the Administrative Council. Nevertheless, and without prejudice to the decision to be made at a later stage by the Council, the Conference had a Preliminary Draft of the Rules relating to Fees drawn up and approved it for publication purposes, in order to give the interested circles an idea of the nature and level of the fees to be paid in the course of the procedure for the grant of European patents. The sums indicated are based on the calculations contained in the Report on the Financing of the European Patent Office, which were themselves based on provisional information, such as the levels of the salary scales of officials of the European Communities in force at the time when the calculations were made. The level of the fees quoted in the Preliminary Draft should therefore be viewed in the light of the current price situation.

32. The Conference decided that the levels of the fees should provisionally be expressed in European units of account, which are of equal value to the dollar; when the Rules relating to Fees are adopted, the level of the fees will probably be expressed in the currency of the State in which the European Patent Office is located. The Conference noted that the plan for the fees contains two variants, one of which provides for a fee for the report on the state of the art at a level equivalent to that of

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the fee charged by the IIB, whereas the other provides for a reduction in this fee and an increase in certain other fees. The fact that these two variants are given does not in any way prejudice the study of the "package" of questions relating in particular to Articles 74 and 79 of the Convention. Should this study lead to the complete elimination of the fee for obtaining the report on the state of the art, the result would be a modified plan in which, among other things, the filing fee would be raised.

33. In view of the purpose of publishing the Preliminary Draft of the Rules relating to Fees, the Conference did not discuss these Articles in depth.

V. Draft Protocol on the Privileges and Immunities of the European Patent Office

34. The Conference recognised that the European Patent Office, being an inter-governmental organisation, and its staff should enjoy privileges and immunities similar to those enjoyed by other existing inter-governmental organisations and their staffs. However, as these privileges and immunities vary somewhat from one organisation to another, the Conference considered that the Protocol for the European Patent Office should not include the maximum number of privileges and immunities but should be restricted to those generally recognised. A draft containing the provisions

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of the Protocol of the European Launcher Development Organisation (ELDO) was remitted without detailed discussion to Working Party II for examination in the light of the opinion expressed by the Conference and the written observations submitted by certain delegations.

35. The question of the system of taxation applicable to the staff of the European Patent Office was deferred for discussion at a later stage.

VI. Report on the Service Regulations and

salary scale system for the staff of the European Patent Office

36. Article 35a of the Draft Convention provides that the Administrative Council shall be competent to adopt the Service Regulations for officials and their salary scales. Nevertheless, as soon as the Convention enters into force and the Administrative Council has assumed its functions, it will have to recruit staff to prepare for the launching of the European Patent Office. For this reason the Conference had instructed Working Party III to begin a preparatory study of the questions of the Service Regulations and salary scales for the staff of the European Patent Office.

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37. The Report by Working Party III contains this study, which is based on two principles, which the Working Party proposed that the Conference should adopt. The first is that the Service Regulations of the European Patent Office should be based on the Model Staff Regulations for the European Civil Service drawn up in the Final Act of the Governmental Conference on the European Civil Service, of Strasbourg, 6 July 1967; the second is that the salary scale should be based on that of the European Communities. The Conference approved these two principles, without prejudice to the final decision of the Administrative Council of the European Patent Office. 38. The Conference also instructed Working Party III to study a pension scheme for the staff of the European Patent Office in preparation of the decisions by the Administrative Council.

VII. Report on the financing

of the European Patent Office

39. The Conference noted the report by Working Party IV, which contains recommendations on possible methods of financing the European Patent Office, both in its steady state when it has reached its full development and is receiving a full range of revenue and also during the period when it is developing and when its full revenue is still not being received. The report points out that although the European Patent Office can be envisaged as growing to

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its full size in a few years, it will be at least 20 years from opening before the full range of renewal fee income will be obtained. The calculations are based on advance estimates as regards both the number of patent applications which will be filed with the European Patent Office and the number of examiners, bearing in mind the time that they will have to devote to the various operations. The considerations set out in the report form the basis for both the financial provisions of the Convention, and in particular Articles 42 to 42c, and the system of fees provided in the Preliminary Draft of the Rules relating to Fees.

40. The Conference approved without a great deal of discussion the principles of the report, which gives a detailed picture of the expenditure that the European Patent Office will incur and the burden which will consequently rest on the Contracting States. It instructed Working Party IV to examine the following questions:

(i) the financial consequences of a State acceding to the Convention after its entry into force (Article 165), of a State denouncing the Convention (Article 171) and of the automatic loss of the status of Contracting State (Article 162, paragraph 4);

(ii) the percentages of the European Patent Office's expenditure to be met by Yugoslavia and Monaco, which have recently been admitted to the Conference, according to the two variants set out in Article 42c;

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(iii) the calculation of these percentages according to the alternative placed in square brackets in the second variant of Article 42c.

VIII. Final Note

41. Working Party I, which will continue to study various questions, was instructed to examine certain Articles of the Preliminary Draft Convention and the Preliminary Draft of the Implementing Regulations affecting general principles of civil law with the government legal experts.

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