[Patents] disgruntled examiners at EPO

[John Smith notobvious@hotmail.com]

The minutes of the Munich Diplomatic Conference are not - as far as I know - 
on the net, but certainly used to be available in the EPO library in Munich.

Mr Pilch's comments on French and German law ignore the fact that these laws 
used to differ substantially from European law;  all national laws have now 
changed to bring them into line with EPO jurisprudence. The commentaries Mr 
Pilch cites are old and in the case of Germany rely on an extremely old 
definition of "technizität" which is recognised as being no longer tenable.  
In any case, I hope he is not implying that we should all be following the 
German line; avoiding this is one reason the EPO was set up. The national 
judges are also following the EPO - even the BGH shows this clearly in its 
latest decisions, even if unlike the English Patents Court and Court of 
Appeal  it doesn't say so xplicitly.

As for the EPO as an organisation, it is I am told one of only two 
international NGOs in the history of humanity to make a profit. Most of us 
would be happy if more government departments and NGOs saw their function as 
giving their "customers more value for their money". As with all other 
patent offices the EPO is under continual pressure to reduce unit costs, no 
bad thing in my opinion. There is room for disagreement as to where the pain 
threshold is reached at which more production means lower quality, but 
anyone who has dealt with the USPTO or JPO will confirm that in comparison 
there's a long way to go yet.

There are major problems ahead for the EPO and all the evidence suggests 
that Hartmut Pilch is right in his comments on the Basic Proposal. Usually 
reliable sources say that this was an attempt by DG5 to bypass the national 
governments because of fears that enlargement eastwards will make
any future diplomatic conference too unwieldy to be effective. I'm told that 
the minimalist position now is to get BEST through and soon call a second 
diplomatic conference at which
matters such as Article 52(2) will be considered.

Which brings me to my final point. The real enemy is not the EPO. The EPO 
largely does what it is told by the national governments and any deviations 
or potential deviations are quickly repaired - witness the quick change in 
the Rules following the EC Biotechnology Directive. If the national
governments really felt that the EPO was deviating from the EPC they would 
act; that they have not done so, and instead national patent offices have 
quickly come into line with EPO
juriprudence (in the case of the "data carrier" cases the UKPO did so almost 
instantaneously) speaks volumes.

There is soon to be, we are told, an EC Software Directive. IMHO that is 
where you should be directing your energies. Noone seems to know what it 
will contain, but we know the vote on amendment of Article 52(2) was so 
close it not because people were convinced by the arguments but because the 
big countries want to wait for the directive.

"notobvious"



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