ADMINISTRATIVE COUNCIL
Reports on meetings of the Administrative Council
Report on the 62nd meeting of the Administrative Council of the European Patent Organisation (Berlin, 12 to 14 June 1996)
1. The Administrative Council of the European Patent Organisation held its 62nd meeting in Berlin from 12 to 14 June 1996, under the chairmanship of Mr Julián Álvarez Álvarez (ES).
2. The Council appointed Mr Curt Edfjäll to the post of Vice-President Directorate-General DG 4. He will take up office on 1 July 1996. The Council designated Mr Peter Messerli (CH) as Vice-President DG 3 and Chairman of the Enlarged Board of Appeal. The Chairman of the Council paid tribute to the work of Mr Paolo Gori, the present Vice-President DG 3, who will be retiring at the end of July. The Council elected Mr Lars Björklund (SE), alternate representative of the Swedish delegation, to another term as chairman of its Working Party on Technical Information and elected Mr Peter Mühlens (DE), member of the German delegation, to be chairman of the Committee on Patent Law.
3. The President of the Office, Mr Ingo Kober, presented the 1995 annual report. He also gave his first activities report to the Council, which covered the period January - June 1996.
The work situation of the Office still continues to be dominated by a steady rise in the number of European patent applications received. The number of European applications received this year by the end of April was approximately 26,900 - which is about 6.8% above the revised plan figure and over 8% above the corresponding figure for 1995. The increase comes from the higher numbers of both direct European applications (6.3% above plan) and Euro-PCT applications (7.4% above plan). On the other hand, the proportion of Euro-PCT applications showed a slightly slower increase than expected and was only 50.5% instead of the forecast 51%. As for the PCT applications entering the European regional phase, the number was 7.2% above the planned figure, and about 21.5% above the corresponding figure for last year. We can expect that the planned figure of 79,000 applications for 1996 will be exceeded before the end of the year.
It is in the area of search that the rise in the number of applications is felt first of all. The total stock of work in the search area rose to 46,300 files (19% above the corresponding figure for last year), and the real backlog went up to 11,300 files, which is almost double the 1995 figure. At the moment about 30% of European applications are published without their search reports. Although the delays have been growing in almost all technical areas, things are particularly difficult in the telecommunication, biotechnology and data processing fields. As a consequence, efforts are being made to increase the number of staff active on search work. This is being done by largely suspending the outward trainee placement scheme, limiting the availability of leave for personal reasons, a reduction in the number of examiners on loan for other activities and, most importantly, the recruitment of new examiners. A recruitment campaign was launched by means of advertisements in well-known journals and newspapers in the member states and about 1,500 applications have been received for positions in The Hague and Berlin. Selection of new staff is in progress; the accent will be placed on recruitment in the three fields mentioned above.
This year's EUROTAB meeting took place in Vienna on 13-14 May. Thirteen countries sent representatives. Among the topics discussed were the patentability of chemical compounds based on an unexpected effect and the patentability of treatments of the human and animal bodies.
The number of appeals filed in the first three months of 1996 corresponded with the planned figure (286, compared with a planned figure of 283). However, this hides a clear trend. The number of appeals filed in the mechanical and electrotechnical areas have both risen (by 6.7% and 9.3% respectively) while it has fallen in the chemical and physics areas (by 10% and 3.9% respectively).
There have been two important decisions of the Enlarged Board of Appeal concerning the support of professional representatives during oral proceedings by technical or legal experts who are not themselves professional representatives. In decision G 4/95, this was accepted on the conditions that any presentations by the experts be under the continuous control and responsibility of a professional representative and that the EPO must agree to such presentations, taking into account fairness for the other party [see OJ EPO 1996, 412]. The parallel case G 2/94 (see OJ EPO 1996, 401) addressed the particular case of former members of the boards of appeal supporting one party. Because there must be no possibility of a board of appeal appearing to have any interest, the Enlarged Board of Appeal decided that a member of a board of appeal can only normally appear at least 3 years after his departure from the Office. However, it also recommended that, to ensure the proper legal basis, your Council be asked to decide on the length of the period after his departure from the Office during which a former member of a board of appeal should not take part in such proceedings.
Turning to legal and international affairs, the President reported on his exploratory talks with the European Commission. The state of relations between the two organisations was reviewed and it was agreed that it was important to co-ordinate activities, while at the same time maintaining the independence of the EPO.
The question of the Community Patent was raised. The Commission is rather sceptical about the success of the Community Patent in its existing form. The Commission announced a study on ways of improving the CPC, in particular on the language question. It was agreed that the creation of uncertainty in the applicant community must be avoided. Re-opening the CPC and the EPC could give rise to just such uncertainty. The Commission is reluctant to launch a new initiative because of the success of the EPC.
On the subject of the European Qualifying Examination, almost 900 candidates sat it this year, another record. This constitutes an increase of 11% over last year. The previous success with the Compendium has continued with half of this year's stock being sold out within eight weeks. However, the EPI and the EPO should continue together to endeavour to shorten the time between the examination itself and the results being announced, at present about six and half months.
The Inward Trainee Placement scheme has been continued. Some 29 trainees are expected to have been taken in during 1996, of which 10 will have come from the Swiss Intellectual Property Institute. The Outward Trainee Placement scheme has been largely suspended to avoid loss of production. This scheme had been well received by host firms as well as by those examiners who had been able to take advantage of the scheme since its introduction in 1991.
On 4 July 1995 Switzerland became the ninth member state to have ratified the revision to Article 63 EPC. This meant that the revised Article 63 will enter into effect on 4 July 1997. In the meantime, 12 member states have lodged their instruments of ratification; Monaco, and Spain are currently preparing their ratification and this will certainly also be the case for Belgium and Luxembourg. Finland and Ireland, which took part in the revision conference as observers, still have to accede to the revision. In this context, the provision of Article 172 (4) EPC will mean that any member state which has not ratified or acceded to the revised text shall cease to be a party to the convention on 4 July 1997.
The 6th meeting of the PCT Committee on Administrative and Legal Affairs (PCT-CAL) at the end of April considered the proposal of WIPO for the introduction of a supplementary international search. It became clear during the discussions that the main aim of this measure was in fact the introduction of a further delay in the start of the national or regional phase of an international application. Such a change could have reaching effects on the EPO and its users and for this reason it requires detailed examination and discussion with interested circles.
A delegation from the office of the Czech Republic, lead by its President, visited the EPO at the end of February for consultations on the accession of their country to the EPC. The formal request for accession was received by the office on 31st May 1996. Other states with the same obligation to the EU (Poland, Hungary and Slovakia) have expressed similar intentions.
In the middle of April, a representative of Andorra expressed his country's willingness to conclude an Extension Agreement with the EPO. An essential condition for such an agreement would be the passing of an Andorran patent law; the EPO is supporting this work.
In the field of international technical co-operation, the President reported that the annual meeting with WIPO was held at the beginning of the year to define a joint programme of co-operation activities. A new task force was set up to review the contents of training activities and to streamline the patent granting procedures in developing countries. Development co-operation activities co-ordination meetings have also been organised with the OEPM and INPI (Paris) and a further meeting is planned with the German Patent Office. The terms of reference for the new RIPP programme have been agreed with the European Commission and with the Industrial Property Offices of the central and eastern European countries. RIPP 3 will cover the period until the end of 1998. The most important development in the CIS countries was the opening of the Eurasian Patent Office in Moscow at the beginning of this year. How it develops in the near future is going to depend on the finance available under the regional TACIS project, which has yet to be signed. In February the Heads of the CIS national patent offices visited the EPO, both in The Hague and in Munich, with the aim of becoming familiar with the European patent system. Co-operation activities with ASEAN countries in the framework of the EC-ASEAN Patents and Trademarks Programme (ECAP), focused on the core tasks of the programme - training, administration of patents and trademarks and the development of search tools.
On the subject of patent information, the President reported that this year's PATLIB Symposium was held at the STAKIS Conference Centre in Aberdeen, Scotland from 29 to 31 May. The conference delegates, staff of Europe's patent information centres and the EU's Innovation Relay Centres, found the occasion a stimulating forum for exchanges of ideas and experience as information providers.
The new MIMOSA CD-ROM software was distributed to clients at the end of 1995. The reaction has been very positive indeed. MIMOSA will become the world-wide standard software for applications in the patent information field.
The introduction of a streamlined procedure in the ESPACE CD-ROM production process, aimed at eliminating as many sources of error as possible and minimising costs, was introduced in January 1996. Problems with the new procedures, which resulted in delays in the delivery of some products, particularly ESPACE-WORLD and -FIRST and national CD-ROMs, have since been resolved.
The success of this service as a substitute for the paper Bulletin and some file inspections continues to grow, mainly amongst EPO applicants. Successive improvements to the Register have been highly appreciated by the users: all the requests submitted in this respect some years ago by Mr. David Votier (UK), on behalf of the user community, have now been implemented.
4. In agreement with the President, the Administrative Council noted the basic assumptions and data for the financial plan and the business plan (1997 - 2001). It also approved a draft decision concerning the reduction of fees in favour of "PCT applicants" from developing countries [see OJ EPO 1996, 396], and proposed amendments to Rules 28 and 28a EPC [OJ EPO 1996, 390].
5. With regard to the BEST project, the Council approved a declaration to the effect that the existing implementation of the BEST project is not in contravention of the European Patent Convention. The question of the office-wide full-scale introduction of combined search and examination will be the subject of a detailed study in due course.
6. The question of changes to the fees was also on the agenda. Following a long debate, the Council concluded that, in view of the Office's income and continuing budgetary surpluses, patenting costs should be reduced and a signal given to users of the system. It mandated the President to draw up a proposal to defer payment of the designation fees until the request for examination is made. The draft decision will be submitted to the Budget and Finance Committee and the Council will take its decision at its meeting next December. Moreover, consideration will be given to reforming the fee system in general at an extraordinary meeting which will take place in the autumn.
7. The Council approved a programme of co-operation between the EPO and the Hellenic Patent Office on patent information in the Hellenic Republic. Discussions were also held on future patent information policy and will be continued at a later date. The Council also approved proposals for appointments and reappointments to the boards of appeal and Enlarged Board of Appeal.