[Patents] re. consultation and conference

[Bernard Lang Bernard.Lang@inria.fr]

About the Diplomatic Conference on November 27, 2000 in Munich


References for the following text :
-----------------------------------
  see: http://www.european-patent-office.org/epo/dipl_conf/documents.htm
   with the complete list of documents

  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 see page 27 and following
              for article EPC 52-2 see page 43 and following

Terminology:
-------------
   EPO   European Patent Office
   DRP   draft rules or 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
        what I call below the package,
        the revision that is being proposed by the EPO, and has to be
          accepted with or without amendments to change the EPC.


Hi,

I am trying to be very precise.  Sorry if this is painful to read.

I do not quite agree with Steve Probert - I thought the rule was as
follows:

   20  Countries are voting, since Turkey is now in.

  The change to EPC is proposed as a package (DRA) of many
modifications including for article 52.2 and also 33 (see references
above), prepared by the EPO.

  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).

  However, the meeting will follow a procedure that has been defined
by the EPO.  This procedure 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 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.

  There are 2 ways this can be achieved:

  1- HARD
     threaten to reject the whole DRA package proposal if not enough
countries accept to vote the removal of modifications to EPC 52.2 and
to EPC 33, and so get the 2/3 majority.
     This can be done if 6 countries agree to it.

  2- SOFT
     (to be done very early in the meeting, item 2 of the draft agenda)
      use articles DRP 32(3) and DRP 38 of the procedure that states,
together, that the procedure rules can be change by a simple majority,
i.e. I guess 11 people (I have no idea what happen when it is 10
against 10).
     Using articles DRP 32(3) and DRP 38, the 2/3 majority can be
changed into a simple majority for making amendments to the whole DRA
package, and then use simple majority to remove the changes to
articles EPC 52.2 and EPC 33.

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


change to EPC 52.2:
   is proposed by EPO to allow patenting of computer programs, and
hence, of all intellectual processes (business methods, educational
techniques, management techniques, etc ...)

change to EPC 33:
   is proposed by EPO, so that it can change the EPC (european patent
convention, i.e. the very text under discussion) to put it in
agreement with other international treaties.  Agreement is of course
what the EPO considers as agreement.  For example, if EPC 52.2
modification does not pass, but EPC 33 does, EPO could decide that its
interpretation of the TRIPS agreement requires to remove EPC 52.2 and
allows patenting software, or what else.
   Given the past record of the EPO, their propensity to bend rules
that have been fixed, you can guess what will happen if you give them
the right to change the rules according to their own assessment of the
situation.

  By the way, it is not clear that all countries are aware of what is
hidden in the proposed modification of 33.  More national lobbying and
information has beenshould be done on that issue.

   Furthermore, this procedural situation should also be explained, so
that proper instructions may given to the representatives of each
country.  It is known that some official representatives tend to be
extremely stupid when they do not have precise orders to do things
that will not please their IP professional friends (do not ask me for
names, I might give them and regret it).

  As far as I know, the package, i.e. the DRA (draft Revison Act), may
be full of other traps prepared by the EPO, which I trust as much as a
nest of rattlesnakes, given their record and their complete disregard
for public welfare.


  Can you comment on this ?  (no need to comment on rattlesnakes :-)

Cordialement

   Bernard


On Tue, Nov 14, 2000 at 11:04:38AM +0000, Steve Probert wrote:
> >Sorry to bother with a silly question, but I can't seem to find a better 
> >place
> >to ask this:
> 
> >The 'official consultation' launched by the European
> >Commission is open until december 15.  But the inter-
> >governmental conference on the changes of the treaty
> >in Munchen is from 20 - 29 November.  Isn't the outcome
> >of the consultation going to come too late?
> 
> 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.  The UK
> position is that it would make sense for the member states of the
> European Union to vote against any amendment of the EPC in relation to
> the software exclusion, at least until after the consultation exercise
> has been completed.  I believe a number of other member states feel the
> same way.  However, it will require a three quarters majority at the
> Munich Conference to prevent the amendment from being approved.
> 
> If the amendment is approved in Munich, and subsequently the member
> states decide (following the consultation exercise) that it would be
> better to keep the exclusion (or modify the law in some other way), then
> presumably it will be possible to change the EPC again.  But some would
> say that this would be very messy, and hope that such a situation can be
> avoided.
> 
> 
> -- 
> 
> Steve Probert
> Deputy Director
> The Patent Office
> 
> _______________________________________________
> Patents maillist  -  Patents@liberte.aful.org
> http://liberte.aful.org/mailman/listinfo/patents

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