About the Revision of the 1973 European Patent Convention (EPC)

This revision of the 1973 European Patent Convention (EPC) has been prepared by the European Patent Office (EPO) Administrative Council (EPO-AC), with the latest decisions taken on 7 September 2000.

On that basis, a Diplomatic Conference for the is to be held in Munich, from 20 to 29 November 2000, its oganization being detailed in a general information document.

It is important to be aware that the EPO is not administered by the European Commission, and has a different (though overlapping) membership. Fifteen of the twenty contracting parties to the EPC (who will be represented at the Munich Conference) are also member states of the European Union.
Hence there is a potential sovereignty conflict between the EPO and the European Union (EU).

The list of members in EPO Covernmental Conference 2000 to vote on "Basic Proposal" to change The European Patent Convention:

AT      Austria
BE      Belgium
CH      Switzerland
CY      Cyprus
DE      Germany
DK      Denmark
ES      Spain
FI      Finland
FR      France
GB      United Kingdom
GR      Greece
IE      Ireland
IT      Italy
LI      Liechtenstein
LU      Luxembourg
MC      Monaco
NL      Netherland
PT      Portugal
SE      Sweden
TR	Turkey   (to join the EPC on November 20, 2000)

• EPC article 52.2, to allow patenting of computer programs (see Draft Revision Act DRA-17, page 9 and 10.), and hence, of all intellectual processes (business methods, educational techniques, management techniques, etc ...)
• EPC article 33.1 as follows (excerpt only): The Administrative Council shall be competent to amend the following provisions: (a) ... (b) Parts II to VIII and Part X of this Convention, to bring them into line with an international treaty or European Community legislation relating to patents; [...] (see Draft Revision Act DRA-10, page 6.)
  It is to be noted that article EPC 33.1 would enable the EPO Administrative council to enact on its own the proposed change to article EPC 52.2 (wich is included in part II of the Convention), by alledging that it is necessary for conformity with existing international treaties, through an extremely extensive and non-consensual interpretation of such treaties. Given the past record of the EPO regarding extensive interpretations of law and treaties, and given the EPO propensity to bend rules that have been fixed, such a behaviour would only be to be expected.
  The EPO already exhibits a clear lack of democratic control. Adoption of the proposed modification to EPC 33.1 would only worsen this situation.

Regarding EPC article 52.2

for        10 votes      AT,BE,CY,CH,GR,IR,IT,LI,MC,NL
against     8 votes      DK,DE,ES,FR,LU,PT,SE,UK
abstain     1            FI

• this short majority was obtained without informing the concerned states of the economic and societal issues at hand (if only because the EPO never bothered to analyze the issues). Several states that voted in favor of software patentability may have (and seem to have) changed their point of view after being informed by concerned organizations.
• when restricted to the EU member countries, this majority of 10 to 8 becomes a minority of 6 to 8. Hence the EU could very well adopt an opposite point of view, leading to a conflict of sovereignty between the EU and the EPO. Asked about this situation at a meeting on this topic, a member of the General Directorate for the Internal Market stated that the EU, and its courts, could decide to disregard the patents granted by the EPO.
• The countries against, though a minority in states, are a very strong majority in population.

What can be done: the procedures of the Diplomatic Meeting

The package is to be accepted as a whole by a majority of 75% (i.e. 15 members) in order to come into effect (procedure rule DRP 32(1) and thus change the text of the European Patent Convention (EPC). Since the package contains many needed improvements to the EPC, countries will be reluctant to reject it.

However, the modifications to articles EPC 52.2 and to EPC 33.1 are quite independent and should not be pyggy-backed on the rest of the proposal as a bundled all-or-nothing decision.

The meeting will follow rules of procedure that have been defined by the EPO-AC in the Draft Rules of Procedure (DRP). This document states in article DRP 32(2) that the DRA package can be amended, but an amendment requires a majority of 2/3. Given that modifications of EPC 52.2 and EPC 33.1 are already in the package, that means that 14 countries would have to request the removal of these modifications in order to maintain the status quo, i.e. remove EPC 52.2 and EPC 33.1 by unbundling the proposal, instead of a majority of 15 countries to accept them.

Note: while this 2/3rd rule may be a proper way of handling a complex array of interrelated modifications, so as to avoid endless discussion, using it to bind in the package completely independent issues can only be considered a fraud with respect to the Convention voting process, especially considering the lack of transparency of the preparatory work.

The following is a way out of this blocking situation that has been set up by the EPO Administrative Council:

There are 2 basic ways this can be achieved:

1. HARD (by 6 countries)
   threaten to reject the whole DRA package proposal, i.e. block any change to the Convention (the whole meeting being hence a failure), if not enough countries accept to vote the removal of modifications to EPC 52.2 and to EPC 33.1, and so get the 2/3 majority. This can be done if 6 countries agree to it.

2. SOFT (by 11 countries, i.e. simple majority)
   to be done very early in the meeting, during item 2 of the draft agenda (Consideration and Adoption of the Rules of Procedure)
   use articles DRP 32(3) and DRP 38 of the Draft Rules of Procedure (DRP) that states, together, that the procedure rules can be change by a simple majority, i.e. 11 countries (what happens when it is 10 against 10 ?) or less if some abstain:
   Using these 2 articles DRP 32(3) and DRP 38, a vote can change the rule DRP 32(2) so that the 2/3 majority can be changed into a simple majority for making amendments to the whole Draft Revison Act (DRA) package.
   Then later, during the discussion of the DRA, use simple majority to remove the changes to articles EPC 52.2 and EPC 33.1 from the DRA.

Remember also that the HARD technique can be used if the SOFT one does not work or is not sufficient.

It is to be regretted that such methods have to be used. But the responsibility lies exclusively with (at least some members of) the EPO-AC who, for reasons known only to them, tried to force the issue with complete disregard for the democratic process, without ever attempting to analyze the impact (obviously significant) of their decisions, and without adequately informing the public and its political representatives as should be their duty.

Remarks

Furthermore, this procedural situation should also be explained, so that proper instructions may be given to the representatives of each country. Some have been known to be remarkably unimaginative when having to support political choices and decisions that do not please their IP professional community.

This document has taken issue only with the modifications to articles EPC 52.2 and EPC 33.1 the Draft Revison Act (DRA). It is by no means an implicit support for the rest of the DRA, or a statement that we see nothing wrong with the rest of the DRA. It is simply that we have not had the time to analyze this document further. For all we know, the DRA could be full of other traps.

References

• see: http://www.european-patent-office.org/epo/dipl_conf/documents.htm for the complete list of documents for the conference, including most documents referenced here.
• Draft Rules of Procedure: http://www.european-patent-office.org/epo/dipl_conf/pdf/em00001.pdf
• Modification of the EPC are best viewed on MR/2/00 Basic Proposal: http://www.european-patent-office.org/epo/dipl_conf/pdf/em00002.pdf
  • for article EPC 33.1 see page 27 and following
  • for article EPC 52-2 see page 43 and following
• Consultation on Software Patents launched by the EU General Directorate for the Internal Market. http://europa.eu.int/comm/internal_market/en/intprop/indprop/softpaten.htm

Terminology

   EPO         European Patent Office
   EPO-AC      EPO  Administrative Council
   DRP         Draft Rules of Procedure for the Diplomatic Conference
   EPC         European Patent convention  (the topic of the conference)
                 i.e. the text that rules the EPO
   DRA         Draft Revison Act
               the revision that is being proposed by the EPO, and has
               to be accepted with or without amendments to change the
               EPC.
   EU          European Union