Pages 476-477

INFORMATION FROM THE EPO

1992 Lisbon Conference on the Community Patent

1. The EC Member States' "1992 Lisbon Conference on the Community Patent", hosted by Portugal as the Member State holding the Presidency of the EC Council in the first six months of 1992, took place on 4 and 5 May 1992. Since neither the Agreement relating to Community patents (ACP)1 nor the separate "Protocol on a possible modification of the conditions of entry into force of the ACP"2 had entered into force by 31 December 1991, Portugal made the necessary preparations, in accordance with the "Declaration on a possible modification of the conditions of entry into force of the ACP" adopted on 15 December 1989, to find unanimously the means of ensuring that the Community patent system could be implemented at the time of the completion of the internal market.

2. The basic proposal tabled by Portugal stipulated in essence that to enter into force, the ACP had to be ratified by ten named signatory States3 (BE, DE, ES, FR, GB, GR, IT, LU, NL and PT); the ACP could thus have entered into force at a "first stage" without Denmark and Ireland, which would have followed at a "second stage" once their respective constitutional and political difficulties had been resolved. The basic proposal also provided that Spain and Portugal, when depositing their instruments of ratification, could reserve the right to declare that the ACP would not come into effect for them until 1 January 1996. In effect this would have meant that the ACP would initially apply to eight, from 1 January 1996 to ten and, once the difficulties in Denmark and Ireland had been resolved, to all twelve current EC Member States.

3. Since however this basic proposal did not meet with the unanimous approval of the Conference, Portugal put forward further proposals by way of compromise.

Under the first of these the ACP would have entered into force on 1 January 1996 for Spain and Portugal only if at that date it was already in force for all the other ten signatory States, in other words also for Denmark and Ireland. The ACP would, however, "in any case" have taken effect for Spain and Portugal on 1 January 1998, possibly even without Denmark and Ireland. This proposal likewise failed to meet with unanimous approval.

Under the second variant, no firm date would have been set for the entry into force of the ACP for Spain and Portugal. In a joint declaration, however, governments would have agreed that an intergovernmental conference should seek afresh "to find unanimously the means of ensuring that the Community patent system enters into force with regard to all signatory States as swiftly as possible", should it not already have done so by 31 December 1995. This variant likewise did not find unanimous favour.

4. The only conclusion to be drawn from the 1992 Lisbon Conference on the Community Patent, therefore, is that it was not possible to achieve a consensus on implementing the Community patent system by the time the internal market is completed, i.e. on 1 January 1993. The Conference simply decided to forward a report on the outcome to the Council of Ministers meeting on the internal market on 18 and 19 June 1992, including the wish expressed by the Conference that when the opportunity presents itself one of the forthcoming EC Council Presidencies should launch a new initiative to continue efforts towards implementation of the ACP.

5. Given the present situation, it would seem that the ACP will not now be entering into force on 1 January 1993. Nor, following the outcome of the 1992 Lisbon Conference, can any prediction be made as to when it will.