BR-Documents : art. 10371 /en

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• Item Number : 10371
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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

Brussels, 16th April 1971 BR/103/71

- Secretariat -

NOTE

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

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

BR/103 e/71 aut/KM/prk

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Note

from the German delegation on the results achieved by Working Party II (Item 4b of the provisional agenda for 18th February 1971, BR/98/71)

The German delegation has taken note, with considerable satisfaction, of the results achieved by Working Party II and is conscious of their noteworthy accomplishment in completing their elaboration of the numerous and complicated provisions relating to international law in only seven working days.

The German delegation has examined these provisions thoroughly with the relevant internal offices. With regard to certain provisions the question arose as to whether it might not be advisable to consider a different solution from that chosen by Working Party II. These questions are set out below for the Conference with a request for decision (see under A and C). It was not possible to conclude examination of a few lesser provisions. In this connection the German delegation felt that it should express a reservation (see under B and D). With regard to a few remaining provisions the German delegation thought that it could make suggestions of secondary importance, chiefly concerning improvements to the wording in all three languages or to adjust the German text. It might be advisable for the Conference to refer these suggestions to Working Party II for examination (Annexes I and II).

BR/103 e/71 aut/KM/prk

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A. Proposed amendments to some provisions of the Convention

1. Article 35a, paragraph 1, sub-paragraph B(a) Article 35n, paragraph 1, sub-paragraph A(a) - Administrative Regulations

In the opinion of the German delegation there is no need to retain the power of the Administrative Council to adopt Administrative Regulations. The Minutes of the meeting merely indicate that the Administrative Regulations should contain the establishment plan of the EPO (BR/34/70, point 12). The administrative structure of the EPO is, however, already dealt with in the Implementing Regulations (Re. Article 53, No. 4; cf. Re. Article 53, Nos. 1 and 2). There does not appear to be any other subject matter requiring regulation which is not already covered by the Implementing Regulations.

It is therefore proposed that the words "Administrative and" be deleted from the first, and "Administrative and" and "relating to the administrative structure of that Office" from the second of the two above-mentioned provisions.

2. Article 35a, paragraph 2 - Powers and responsibilities of the Administrative Council

2.1 Sub-paragraph (a) - Management of the EPO

In the opinion of the German delegation the smooth functioning of the EPO is impeded by the overlapping powers of the Administrative Council and the President of the EPO (compare Article 36, paragraph 2, sub-paragraph (a)). Consequently, the Administrative Council should be constituted as a purely supervisory authority.

BR/103 e/71 aut/KM/prk

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It is, therefore, proposed that the relevant provision be deleted.

2.2 Sub-paragraph (f) - Representation of the EPO

The question arises whether it is necessary and advisable for the President of the EPO to be made dependent upon the approval of the Administrative Council for exercising the legal capacity of the Office in certain matters.

The German delegation accordingly proposes deletion of the above-mentioned provision and note 2 on page 43, and also of the note to Article 32 on page 37.

3. Article 35g, paragraph 4 - Powers and responsibilities of the Board

The setting up of a Board of the Administrative Council is most welcome. The Administrative Council, with possibly 20 members, and probably meeting only once or twice during the year, might be too unwieldy a body to arrive at prompt decisions on the plethora of questions that could be expected particularly during the build-up period. However, Working Party II has made no provisions for the Board to have any powers of its own.

The question arises whether the Board ought not to be set up as a kind of executive committee of the Administrative Council.

It is, therefore, proposed to word Article 35g, paragraph 4, as follows:

BR/103 e/71 aut/KM/prk

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"(4) The Board shall be empowered to take decisions within the meaning of Article 35m, paragraph 5, where it is authorised by the Administrative Council to take decisions in individual cases or if it shall deem such decision-taking to be expedient. The decision of the Board shall require four-fifths of its votes."

- Term of office of the members of the Board

The first term of office of the President and Vice-President of the Administrative Council and also of the three remaining members of the Board should, in accordance with the pattern laid down in Article 167, paragraphs 3 and 4 of the EEC Treaty, expire at different times in order to guarantee continuity of the proceedings of the Administrative Council. It is, therefore, proposed to fix the first term of office of the President of the Administrative Council for a period of four years, that of the Vice-President of the Administrative Council for a period of three years and that of the remaining three Board members for a period of five, four and three years.

5. Article 35m, paragraphs 1 to 3 - Unanimity, transfer of voting rights

The question arises, whether it is advisable to require the unanimous vote of all the Contracting States for individual decisions. The provisions in paragraph 1, sub-paragraph C, and in paragraph 2 show clearly the difficulties arising from the requirement of unanimity and might lead in a number of instances to an undesirable delay in the entry into force of the decisions of the Administrative Council.

BR/103 e/71 aut/KM/prk

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It is, therefore, proposed that a majority of three-quarters of the votes be required for the decisions in question instead of a unanimous vote. Furthermore, there should be the possibility of transfer of voting rights in all ballots, which is also provided for in the EEC Treaty (Article 150). The question is put up for discussion, whether the possibility of voting in writing (paragraph 1, sub-paragraph B) should be maintained. Finally, paragraph 1, sub-paragraph D should be replaced by a version, according to which all decision-taking depends only upon the votes of those Contracting States present or represented.

Paragraphs 1 to 3 of Article 35m could therefore be replaced by the following paragraphs 1 to 4:

"(1) The following shall require a majority of three-quarters of the votes of the States present and represented:

(a) the decisions referred to in Article 35a, paragraph 1, sub-paragraphs A and E;

(b) the decisions referred to in Article 35a, paragraph 3;

(c) the decisions referred to in Article 162, paragraph 2.

(2) The following shall require a two-third majority of the votes of the States present and represented: [the remainder the same as the previous paragraph 4]

(3) All other decisions of the Council shall require a simple majority of the votes of the States present and represented.

BR/103 e/71 aut/KM/prk

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(4) Where a vote is taken, any Contracting State may act as a proxy for not more than one other Contracting State. Any Contracting State which is not represented at a meeting of the Administrative Council may vote in writing

Decisions subject to weighting

The German delegation does not consider it expedient to divide decisions taken with a qualified majority into those subject to weighting of votes and those for which the votes are not weighted.

It is, therefore, proposed that weighting of votes be provided for all decisions taken with a qualified majority.

Time for weighting of votes

The question arises, whether it is an unnecessarily time-consuming procedure to not require weighting of votes until the second round of the ballot.

It is, therefore, proposed to require weighting of votes as early as the first round of the ballot.

Article 35n, paragraph 1, should, therefore, be worded as follows to align with Article 148, paragraph 2, of the EEC Treaty:

"(1) Where the Administrative Council's decisions require a qualified majority, the votes of the Contracting States shall be weighted."

BR/103 e/71 aut/KM/prk

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If this proposal is accepted the words "In this second ballot" would be deleted from Article 35n, paragraph 2.

6.2 Paragraph 3 - Limitation of the maximum number of votes

It is questionable whether this provision is necessary in view of the fact that paragraph 2 deals in a very detailed manner with the calculation of votes.

It is accordingly proposed that paragraph 3 be deleted.

7. Article 35o, paragraph 1 - Staff of the Administrative Council

The German delegation considers that the Administrative Council of the EPO does not need to have staff of its own. It should use the staff of the European Patent Office. Other organisations in the field of industrial property (Union for the Protection of New Plant Varieties, Benelux Patent Office, IIB, WIPO, PCT) do not make provision for their Administrative Councils to have their own staff. It is merely considered expedient, as a precaution, to create a contractual basis for the recruitment of their own staff.

It is therefore proposed that provision be made in Articles 35a and 35m for the Administrative Council to be able to decide by a two-thirds majority to appoint its own staff, and to formulate Article 35o, paragraph 1, as follows:

"(1) The Administrative Council may use the staff of the European Patent Office for the performance of its duties."

8. Financial and Budgetary Committee

Possibly it may be expedient to provide for the BR/103 e/71 eld/KM/prk

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appointment by the Administrative Council of a Financial and Budgetary Committee. Most international organisations have established such a financial and budgetary committee. The financial provisions and Article 35a entrust to the Administrative Council a large number of non-recurring and recurring decisions in the financial field which require thorough preparation. Their treatment at the ordinary meetings of the Administrative Council would necessitate the participation of representatives specialising in a wide variety of fields, apart from overloading the agenda. It is thus proposed that a provision be included (e.g. in place of the present Article 35b, cf. Annex I, point 6), which could read as follows:

"The Administrative Council shall appoint a committee which shall have the task of preparing financial and budgetary decisions."

9. Implementing Regulations as part of the Convention

The Implementing Regulations should be an integral part of the Convention. It is accordingly proposed that a provision be included (e.g. in place of the present Articles 160, 161, cf. Annex I, point 11) which could read as follows:

"The Implementing Regulations accompanying this Convention are an integral part of the said Convention."

10. Article 162, paragraph 1 - Revision

The question arises as to whether it is sensible to make revision dependent on certain prerequisites. According to the present wording it is, for example, doubtful whether revisions could be requested for the purpose of extending the group of patentable inventions.

BR/103 e/71 eld/KM/prk

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The high qualified majority required for the convening of a Revision Conference should be sufficient guarantee that conferences of this nature do not take place too frequently.

It is therefore proposed that the above-mentioned provision be formulated as follows: (cf. Article 60, paragraph 1, PCT):

"This Convention may be revised by special conferences of the Contracting States."

11. Article 166 - Entry into Force

Working Party I considered it desirable to include in the Convention a provision regarding the first meeting of the Administrative Council (Minutes of the 5th meeting of Working Party I, BR/49/70, 26 October 1970, page 25, point 74). Such a provision could read as follows, as Article 166, paragraph 1a:

"The States referred to in paragraph 1 shall appoint their representatives in the Administrative Council and shall convene the Administrative Council, which shall meet not later than two months after the entry into force of the Convention, in particular to appoint the President of the European Patent Office."

12. Article 172, paragraph 2 - Official translations

It would appear expedient to lay down that the publication of an official translation of the Convention should require the approval of the Administrative Council.

The provision should thus be formulated as follows:

"Official texts of this Convention may be published in the official languages of other Contracting States with the approval of the Administrative Council."

BR/103 e/71 eld/KM/prk

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13. Article 35d - Representation of the Commission in the Administrative Council

The German delegation reserves the right to adopt a position when the occasion arises on the question of whether the Commission of the European Communities should be given a seat in the Administrative Council without right of voting.

14. Article 35n, paragraph 2 - Nature of the weighting of votes

The German delegation is basically in agreement with the system provided for in Article 35n, paragraph 2; it reserves the right, however, to adopt a position on individual problems of the system, particularly on the question of whether the figure for the total financial contributions of each Contracting State in the year but one before the taking of a decision should be used instead of the figure of the scale for the financial contributions of each Contracting State.

15. Article 35p - Privileges and immunities of the Administrative Council

The German delegation reserves the right to adopt a position on the question of whether the privileges and immunities enjoyed by the members of the Administrative Council should be extended to the Administrative Council as a body, so that the staff employed by the Administrative Council might also enjoy such privileges and immunities.

BR/103 e/71 eld/KM/prk

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16. Article 5 - Import and export of goods

It is proposed that the phrases "or on behalf of" and "whenever possible" be deleted.

17. Article 16 - Fiscal arrangements applicable to staff members

It is proposed that Article 18 of the ESRO and ELDO Protocol be incorporated, provided that the relevant slight alterations are made to the second half of the second sentence of paragraph 1. Other slight alterations are of an editorial nature only. Taking into account these alterations, the provision would read as follows:

"(1) Subject to the conditions and following the procedure laid down by the Administrative Council within a period of one year from the date of the entry into force of the Convention, the persons to whom this Protocol applies shall be subject to a tax for the benefit of the European Patent Office, on salaries and other emoluments paid by the European Patent Office. From the date on which this tax is applied, such taxes and emoluments shall be exempt from national income tax. The salaries and emoluments thus exempt will, however, be taken into account when assessing the amount of tax to be applied to income from other sources.

(2) Paragraph 1 shall not apply to pensions and annuities paid by the European Patent Office to former members or employees of the European Patent Office or of the Administrative Council."

BR/103 e/71 eld/KM/prk

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D. Reservations regarding certain provisions of the Protocol

18. The title of the Protocol, the Preamble and Article 12, Paragraph 1, first sentence, are dependent on the text of Article 35p of the Convention, regarding which the German delegation has reserved the right to adopt a definitive position (see above, point 15).

19. Article 14, sub-paragraph b - Exemption from military service

The German delegation reserves the right to return to the question of whether such an extensive exemption from the obligation to carry out military service should be provided.

---BR/103 e/71 eld/KM/prk

[p.17]

Suggestions concerning various provisions of the Convention,

mainly regarding the wording

1. The powers of the Administrative Council should be fixed definitely in Articles 35a ff. (BR/34/70, point 7). So far, this principle has not been fully complied with. In Article 35a, certain powers and functions of the Administrative Council provided for by Working Party I (Articles 73, paragraph 5, 121b, 2nd sentence, 156, paragraphs 1 and 2), Working Party II (Article 162, paragraph 2, and, preferably, Article 35i), Working Party III (Article 39, second variant of paragraph 1) and Working Party IV (Articles 42b, paragraphs 1 and 5, 42c, paragraph 2, 42d, 42e, paragraph 2, 48, paragraph 2, 50, paragraphs 1 and 4, 157, paragraphs 2 and 3) are missing.

2. Article 35a, paragraph 1, sub-paragraph B(d)

In the German text, the word "Regelungen" (rules) does not clearly express what is meant. Is it only a question of further "Nebenabkommen" (subsidiary agreements)?

3. The note to Article 35a, paragraph 1(E) (Note 1, page 43) should be deleted.

4. Article 35a, paragraph 3(A)

A decision by the Administrative Council on the accession of a given state is possible only in the case of Article 165, paragraph 2. In the case of Articles 164, paragraph 1, and 165, paragraph 4, accession takes place without a decision by the Administrative Council.

BR/103 e/71 (Annex I) riz/KM/prk

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Article 35a, paragraph 3(A) should therefore read as follows: "give its decision on requests for accession to this Convention, pursuant to Article 165, paragraph 2."

5. Article 35a, paragraph 3(D)

"branches for information and liaison" should be replaced by "a branch referred to in Article 33, paragraph 2' (cf. Article 40, paragraph 2).

6. Article 35b

Sub-paragraph (a) could be included in Article 35a. There ought to be no need for sub-paragraph (b). If amendments to the Convention were rendered necessary by the accession of other states, the revision procedure laid down in Article 162 would have to be set in motion.

7. Article 35e

The note should be complied with.

8. Article 35i

8.1 This provision should be deleted if the proposal to include its contents in Article 35a is accepted (see above, point 1).

8.2 Consideration should be given to whether the provision is broad enough to allow for a written process of decision by the Administrative Council in the Rules of Procedure. If this is not so, the provision should be broadened.

BR/103 e/71 (Annex I) rin/KM/prk

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9. Article 351, paragraph 2

States wishing to conclude a special agreement, within the meaning of Article 8, should not be deprived of the possibility of fixing the details concerning the Select Committee within the agreement under Article 8 rather than in a separate protocol.

Article 351, paragraph 2, should therefore read as follows: (second line) "... shall be laid down by the States party to the special agreements referred to in Article 8."

10. Article 35m, paragraph 4(a) and (b) can be combined as follows: "(a) the decisions under Article 35a, paragraph 1 B and C".

If this suggestion is not followed, the word "other" in Article 35m, paragraph 4, should be deleted.

11. Articles 160 and 161, which for the moment form part of the Final Provisions. Article 160 could be placed at the end of the General Provisions, as Article 8a. Article 161 could be fitted in as Article 76, paragraph 1a, in which case the reference in Article 160 to Article 161 would have to be deleted.

12. Article 162, paragraph 2, should be deleted if the provision made in Article 35a (see above, point 1; e.g. in paragraph 3 of Article 35a) and - by way of reference to Article 35a - in Article 35m is accepted.

BR/103 e/71 (Annex I) rin/KM/prk

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13. Article 164, paragraph 1 covers only the 17 States taking part in the preparatory work and the 3 States (Monaco, Iceland and Cyprus) which are interested in the preparatory work (BR/58/70, point 1; BR/53/70, point 16). It does not cover possible participation by Yugoslavia. Paragraph 1 should therefore be modified as follows: "This Convention shall be open for signature until ...$^{(1)}$ by States which have taken part in the Inter-Governmental Conference for the setting up of a European System for the Grant of Patents or ...".

14. Article 165, paragraph 2

14.1 The first sub-paragraph would be clearer as follows:

"This Convention may also be open to accession by other European States after it comes into force, in accordance with ...".

14.2 The third sub-paragraph should be deleted if the suggestion made under point 4 above is followed.

14.3 If the third sub-paragraph is deleted, the fourth sub-paragraph should begin as follows: "In the case of a favourable decision by the Administrative Council [pursuant to Article ...7...".

15. Article 168, paragraphs 3 to 6, deviates in various respects from the corresponding provisions for the Arbitration Tribunal laid down in Articles 23 and 24 of the Protocol on Privileges and Immunities. The question arises as to whether these provisions can be unified. Specifically, the following provisions are concerned:

BR/103 e/71 (Annex I) rin/KM/prk

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(i) Right to appoint the arbitrator to act as chairman:

Article 168, paragraph 3, fifth sub-paragraph, of the Convention (to clarify the German text, the word "Obmann" should be preceded by the words "als dritter Schiedsrichter tätiger");

Article 24, paragraph 1, last half-sentence and paragraph 3, second sentence.

(ii) Time-limit for nomination of the arbitrators by the parties:

Article 168, paragraph 3, fourth sub-paragraph; Article 24, paragraph 3, first sentence

(iii) Grounds for excluding persons from making the appointments:

Article 168, paragraph 3, sixth sub-paragraph; Not laid down in the Protocol

(iv) Legal force and interpretation of the arbitral decision:

Article 168, paragraph 4; Article 23, paragraph 4

(v) Determination of the procedure of the Arbitration Tribunal:

Article 168, paragraph 5; Article 24, paragraph 4

(vi) Provisions relating to costs:

Article 168, paragraph 6; Not laid down in the Protocol.

BR/103 e/71 (Annex I) rin/KM/prk

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(vii) Panel of potential arbitrators:

Not laid down in the Convention;

Article 24, paragraph 2, of the Protocol

(viii) Grounds for exclusion from appointment as arbitrator:

Not laid down in the Convention;

Article 24, paragraphs 3 and 4, of the Protocol.

16. For clarity's sake, Article 169 should read as follows:

"... other than those provided for in Article 158."

BR/103 e/71 (Annex I) rin/KM/prk

[p.23]

ANNEX II

Suggestions concerning certain provisions

of the Protocol on privileges and immunities, mainly regarding the wording

1. The Protocol refers to the "staff members" of the European Patent Office (Articles 6, 11, 14, 17, 18, 19, 23). To bring it into line with Article 38 of the Convention the Protocol should use the term "employees".

2. Article 1, paragraph 2, instead of "The authorities ... except with the consent", should read: "The employees of the authorities ... except with the prior consent."

3. In Article 7, paragraph 2, first half sentence, the following amendments should be made:

a) Instead of "branches", it should read "branches set up under Article 33, paragraph 2, of the Convention";

b) Does not concern English text.

4. Article 9, first half sentence: Does not concern English text.

5. Article 14, sub-paragraph (a) should be aligned on Article 15, sub-paragraph (a).

6. Article 18 is based on Article 20 of the ESRO Protocol. As the result of an incorrect German translation of Article 20 of the ESRO Protocol, an argument has arisen as to whether ESRO itself, which has its own social security scheme already enjoys exemption from compulsory contributions to national social security schemes on the basis of Article 20,

BR/103 e/71 (Annex II) oyd/KM/prk

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or whether at the moment that is not the case, since ESRO has not yet concluded any special agreement with the Federal Republic of Germany on contributions to social security schemes. To avoid similar misunderstandings, the first half of Article 18 should read as follows: "Subject to any provisions to the contrary in the agreements made with the States parties to the Convention in accordance with the provisions of Article 25, the European Patent Office ... national social security schemes".

7. Article 19, paragraph 2, should be made somewhat clearer by the insertion of two references: "The President of the European Patent Office shall have the duty to waive the immunity referred to in Articles 14 and 15 ...". "As regards the President, the Administrative Council shall be empowered to waive the immunity referred to in Article 13".

8. Article 22, paragraph 1, 3rd line, the term "staff regulations" should be aligned with Article 39 of the Convention to read: "Service Regulations for officials and conditions of employment of other employees".

9. Article 24, paragraph 3, line 10: "the arbitrator to act as chairman" would be better than "the third arbitrator" and line 12: "as the arbitrator" would be better than "to fill the post of the arbitrator".

10. Article 26: For the reference "Article g", substitute "Article 168".

11. Article 31, paragraph 3: For the reference "Article j, paragraph 1, of the Convention (1)" substitute "Article 171, paragraph 1, of the Convention".

BR/103 e/71 (Annex II) oyd/KM/prk