I know that I am a little bit late with this particular piece of information but nevertheless I think that the new policy of the Administrative Council (AC) of the European Patent Organisation (EPOorg) to publish (some? most?) of their Official Documents is worth to be disseminated widely.
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.
The Administrative Council is the European Patent Organisation’s governing body. Made up of delegations from the Organisation’s 38 Member States, it is responsible for mainly supervising the activities of the European Patent Office, the executive body of the Organisation.
It appears that non-public Documents are not only not published but also not mentioned on the website at all. It is not known to me which criteria are applied internally to identify public and non-public Council Documents.
The Administrative Council is one of the two organs of the European Patent Organisation, the other being the European Patent Office. The Council acts as the Office’s supervisory body and is composed of the representatives of the EPO member states.
Present Documents include (inter alia):
- CA/D 17/12 Decision of the Administrative Council of 11 December 2012 on payment of a collective reward to staff of the European Patent Office in active service during 2011 (Payment of EUR 4000,– for for each full-time EPO staff member)
- CA/98/12 Rev. 1 Collective reward for EPO staff
- CA/106/12 SPLH – Exchange of views on the documents produced by the Tegernsee Experts Group (study on grace period, study on 18-month-publication, treatment of conflicting applications, study on prior user rights, next steps within the Tegensee Process, recommendation for publication)
Recently Document 10059/12 originating from the Danish EU Presidency and dated May 24, 2012, has been released to the public. It is titled Draft Agreement on the creation of a Unified Patent Court – Suggested way forward for a political agreement and addresses Permanent Representatives Committee (Part 1) / Counci (COREPER1). The Document re-iterates that, according to the Danish Presidency, the creation of unitary patent protection and the Unified Patent Court are key drivers for strengthening economic growth and job-creation in the European Union and cornerstones in building a strong science base in Europe.
Again according to that Document, on December 05, 2011, the Competitiveness Council had an exchange of views on the last outstanding issues regarding the creation of a Unified Patent Court based on Document 18239/11. At the end of those discussions, and while keeping in mind that nothing is agreed until everything is agreed, delegations had reached a general agreement on all but one outstanding issue, namely the place where the seat of the Central Division of the Court of First Instance will be situated.
No substantial portions of Document 18239/11 have been released yet; the heavily redacted published version only discloses some points of interest as follows:
- Renewal fees
- The financial contribution of the Member States hosting a local division, a regional division, the central division of the Court of 1st Instance or the Court of Appeal
- Other financial contributions of the Member States
- Court’s fees
- Language of proceedings
- Actions to be brought to the central division
- Transitional period
- Revision clause
- Number of ratifications required for the entry into force
- Breeders’ privilege
- Local divisions
- The seat of Central Division of the Court of 1st Instance, the seat of the Court of Appeal with the Registry and the seat of the Patent Mediation and Arbitration Centre
You will note that apparently the issue of the rights of European Patent Attorneys to represent their Clients is not mentioned on this list.
Now back to Document 10059/12. This text further discloses that at an informal meeting of the members of the European Council on January 30, 2012, the participating Member States (i.e. all EU Member States except ES, IT) stated their commitment towards reaching a final agreement on the European patent reform at the latest in June 2012. This commitment was confirmed by the European Council on March 01-02, 2012, and by the members of the European Council on May 23, 2012. Based on the common understanding that the texts of the draft Agreement on a Unified Patent Court and of the draft Statute of that Court have been thoroughly discussed under the Polish Presidency, the Danish Presidency is reported to have undertaken intensive consultations, aimed at reaching a compromise on the last outstanding issue concerning the seat of the Central Division. As a follow up on these consultations, the Danish Presidency invited the delegations of the participating EU Member States to discuss the location of the seat of the Central Division of the Court of First Instance with a view to reaching a political agreement.
Finally, reference is made to the fact according to which the Competitiveness Council on December 05, 2011, the participating Member States reached general agreement on a draft declaration of the contracting Member States concerning the preparation for the coming into operation of the Unified Patent Court, as contained in Document 17580/11 (Document again heavily redacted, little substantial disclosure). In response to several Member States having expressed the need for further clarification on the process following a political agreement on the patent package, the Danish Presidency now circulates a draft statement originating from the Danish Presidency but apparently also supported by the incoming Cypriot Presidency on the process following such a political agreement, as set out below:
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Now that François Hollande took office as the new President of France after his marginal victory in the French presidential elections this May, he will now introduce himself to official EU policy on his first Competitive Council meeting on May 31/June 1. The draft agenda for this meeting (cf. item 19), reading “Draft agreement on a Unified Patent Court and draft Statute – Political agreement“, electrifies observers of and parties involved the ongoing European patent legislation saga (see also press release, middle of page 5).
In recent months the upcoming French elections brought the negotiations on the Unified Patent Court Agreement to a complete standstill, as the dynamics between the French, British and German heads of govenment and the general political climate is a crucial factor in this legislative process, especially since the only serious and realistic candidates for the attractive seat of the new UPC Central Division are Paris, London, and Munich and it is frequently announced through official channels that this question is the only remaining open issue.
The EU Council expressed already in January this year its believe that a final agreement can be reached in June 2012 (see official statement) and it was the President of the European Council, Herman Van Rompuy, who clarified in a recent letter that he hopes (or expects) the remaining issues to be sorted out at next week’s Competitiveness meeting:
“[...] This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council.”
But IP matters will not become easier in Europe with Mr Hollande, given his apparent openness to positions of critics of the current patent system. In fact, some of the answers (pdf) of Ms Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team, on a tendentious pre-election questionnaire of French anti software patent group “April” appear as if the socialist candidate for president (or his spokeswoman) was one of the ideological leaders of that pressure group:
The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
Yesterday, in Berlin the German industry association Bundesverband der Deutschen Industrie e.V. (BDI) has held a conference titled Tag des geistigen Eigentums – Geistiges Eigentum verpflichtet (Intellectual Property Day - Property entails obligations). According to a report published on Heise’s Newsticker the topic of the pending proposal for a Unitary Patent was discussed.
Reportedly Mr Christoph Ernst from German Ministry of Justice (Bundesjustizministerium) has re-affirmed his expectation that a conciliation on this matter can and will be reached until next meeting of the EU Competitiveness Council to be expected end of May or in June later this year.
Mr Lothar Steiling, Director Intellectual Property with Bayer AG and President of the VPP (German Association of Intellectual Property Experts), is reported to have supported the proposed enhanced co-operation to create a Unitary Patent on behalf of those circles of insustry which have decided not to oppose the pending draft contrary to the dismissive language used especially be EPLAW. Another supportive statement came from Mr Andreas Thürer, Director Intellectual Property with Bosch Rexroth.
Ms Kerstin Jorna from EU Commission DG Internal Market is said to have argued more cautiously, considering that the proposal still might fail. She explicitly appealed to the representatives of German Industries to come forward in support of the Unitary Patent.
Furthermore, statements of FFII as well as of representatives of the German Piratenpartei are said to have expressed their concerns especially that the Unitary Patent might turn out to be a tool to facilitate legal acceptance of software patents (patents on computer-implemented inventions CII).
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A couple of years ago, in 2007 the European Patent Office (EPO) was pleased to invite to its annual Online Services conference, which that year took place in the Lake Como area, Italy, on 13 and 14 November. The conference theme was ‘End-to-end electronic processing – how to survive when the EPO no longer accepts paper‘. In fact, within the broader context of the European Patent Network EPN, the EPO strived to modernise itself by announcond advanced electronic digital network superstructures.
The intention was to eliminate paperwork also with regard to communication to and from the applicants, that is, in many cases, their patent attorneys, well before the end of the decennium; see Barbara Cookson’s report here. A message on the EPO website (which, meanwhile, is long gone) said:
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Recently the European Patent Office (EPO) has published Decision T 1695/07 – 3.3.07 of one of the Boards of Appeal dealing with the exception from patentability under Article 53(c) EPC. The catchword reads as follows:
I. A blood manipulation process involving the continuous removal of blood from a patient, its subsequent flowing through a circulating line of an extracorporeal circuit and its re-delivery to the patient is a method of treatment of the human body by surgery excepted from patentability under Article 53(c) EPC. It does not belong to the kind of methods which should not be covered by the exception clause according to the “narrower understanding” suggested by the Enlarged Board of Appeal in decision G 1/07, because the process is not performed in a “non-medical, commercial environment” and cannot be considered as a “minor intervention” being performed on “uncritical parts of the body” (Reasons, 8 to 10).
II. Such an in vivo process requires “professional medical expertise” and belongs to the kind of interventions representing the “core of the medical profession’s activities”, even when performed by paramedical support staff (Reasons, 11).
III. Even when the process is carried out with the required medical professional care and expertise, it involves ”substantial health risks” for the patient. A health risk is considered to qualify as “substantial” whenever it goes beyond the side effects associated with treatments such as tattooing, piercing, hair removal by optical radiation, micro abrasion of the skin as mentioned in G 1/07. A factual analysis of absolute or relative risks and their likelihood of occurrence based on objective evidence is hardly feasible and should therefore not be required.
In the Decision the Board argues the claimed process does not fall under the “narrower understanding”, i.e. does not belong to the kind of methods which should not be covered by the exception clause according to the criteria developed in G 1/07 because of it comprises the steps of
- “continuously removing blood from a downstream location in the shunt (12) …” and
- “delivering the removed blood flowing in said circulating line by way of an outlet connected to an outlet side of said circulating line to an upstream location of said shunt, …”.
Furthermore and again according to the Board, It has been established that these steps are invasive and represent a substantial physical intervention on the body which requires professional medical expertise to be carried out and which entails a substantial health risk even when carried out with the required professional care and expertise. ccording to the established jurisprudence of the Boards of Appeal, a multi-step method falls under the exception clause of Article 53(c) EPC, if it includes at least one feature that constitutes a method step for the treatment of the human body by surgery. The possible technical contribution of the invention as mentioned by the proprietor appellants is not a criterion to be taken into consideration in this context.
During the past 15 years the Boards of Appeal of the EPO have developed a consistent case law as to the pragmatic problem/solution approach for assessing patentability pursuent Art 52 -57 EPC. In our earlier overview on
to which this posting is meant as a more practical continuation, we briefly characterised the EPO’s main examination approach:
[M]odern case law [of the EPO Boards of Appeal on software inventions], especially the suggestion in T 1173/97 that the “technical contribution” is an inventive step consideration and the observation in some early cases (e.g. T 38/86 and T 65/86) that the “inventive contribution” must lie in a “field of technology”, almost naturally lead to the problem-solution approach as developed in T 641/00 (COMVIK) and T 258/03 (Hitachi) and theoretically justified in T 154/04 (Duns).
This approach nowadays is the crucial test to differentiate between a technical contribution implementing a non-technical concept (e.g. a business method) and an inventive contribution in a technical field (e.g. an embedded control software). Its general idea is that only the technical features of a claim may be taken into account for assessing inventive step, while the non-technical features form a basis for formulating the underlying problem, with the effect that the non-technical features may render the technical solution obvious.
This approach is widely accepted among practitioners as enhancing legal security for applicants since it represents a comprehensible benchmark against which EPO decisions are subject to verifiction.
As something like a pre-Christmas present, the European Patent Office startet off into the bright future of online communication and interaction last week.
On 13 December 2011 a President’s Decision and a related Notice introduced the notification of communication in selected EPO proceedings via online mailboxes (entered into force on 15 December 2011), while a Notice dated 15 December 2011 informed on the newly launched web-based consultation platform for proposed changes to European patent law and practice.
The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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