From the monthly archives: August 2013

In Janurary this year I was happy to report that

In a move towards greater transparency, the European Patent Office is improving the access to the documents of the Administrative Council of the European Patent Organisation. Under this new policy, all public documents of the Administrative Council will be made available after each session and published on the EPO’s website. The documents of the October 2012 session are already accessible.

Well, let as have a look what actually has been published there

Today, on August 30, 2013, I can see there a whopping bunch of 17 (seventeen) publicly accessible AC documents dated 2013, most of them reflecting minor technicalities. Even without having any privileged insights into the inner workings of the AC I feel much on the safe side to assert that just 17 published documents are a trickle compared to the full registry of documents circulated in that body during that time period. And, even this publication of a tiny minority of CA documents has not been announced widely and is hardly to find on the website of the EPO if you don’t already know where to look.

There appears to be only one valid conclusion: The public repository of CA documents as we see it now merely is sort of a fig leaf excuse for not wanting to have much insight into the CA business for the general public.

In this context it is important to closely examine the responsibilities: It would be grossly unfair to blame EPO personnel for this misery, Surely the general policy governing the public availability / confidentiality of CA documents is defined by the CA itself, not by EPO or its President. And the CA is made up of Representatives appointed by the EPC Member States (see Article 26 EPC). And those Representatives are not only selected by their respective national Government but also instructed, briefed, and supervised by the ministry in charge with IP politics (in most cases Ministry of Justice, I’d guess).

This means that on a high ministerial level the general thinking is that it would not be good to give plenty of information out to the general public about the proceedings of the CA of the EPO.

But it goes from bad to worse.

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Earlier this year the Agreement on creating a European Unified Patent Court was signed in Brussels. As it is well known, now the Agreement needs Ratification by at least 13 participating EU Member States, including the “Big Three”, namely Germany, United Kingdom, and France, to enter into force.

While the languages of the Agreement itself and its related Statues of the Unified Patent Court are technically fixed by the signatures of the representatives of the participating EU Member States and, hence, are to be considered as final, the Rules of Procedure (RoP) have been published so far only in their 15th Draft version. According to Article 41 of the Agreement, the Rules of Procedure shall lay down the details of the proceedings before the Court. The Rules of Procedure need to be be adopted by the Administrative Committee on the basis of broad consultations with stakeholders.

As the Administrative Committee of the Unified Patent Court can constitute itself only after the Agreement has effectively entered into force, currently there is no competent body to take any binding decision in that respect.

However, the participating Member States of the EU have agreed to create a Preparatory Committee (made up of Representatives of those States like it will later on happen with regard to the Administrative Committee and currently chaired by Mr. Paul van Beukering) informally anticipating the text of the Rules of Procedure. After entering into force of the Agreement (in some future) it is politically expected that after formal inauguration of the Administrative Committee the latter will more or less just rubber-stamp the proposals of the Preparatory Committee. The present Draft Rules of Procedure have been prepared by a drafting Committee of expert judges and lawyers, and has been the subject of technical consultations with professional and industry bodies. The Drafting Committee was composed as follows:

We would like not to omit to remind you that from

25 June 2013 until 1 October 2013

the Draft Rules of Procedure are be open to written comments from stakeholders or other interested parties. Respondents are requested to send them to

Only contributions received through this address will be considered. According to the Roadmap as published, the Adoption of Rules Procedure in the Preparatory Committee is then planned to happen by July 2014.

In order to simplify access to and citation, quotation and hyperlinking of the available texts of the Agreement, the Statute as well as the Rules of Procedure on an Article-by-Article or Rule-by-Rule mode, respectively, KSNH has provided an informal Wiki-Style version thereof:

However, yet not all cross-links between the Articles and/or Rules are in place.