submitting prior art to EPO

[Hartmut Pilch <phm@a2e.de>]

The following must have been sent by someone from the EPO who 
thinks that prior art search is the main problem and that people should 
volunteer to help the EPO with it and, apart from that, not be so 
concerned about swpat.  Some of the info contained in the text could be of 
interest.

From Usent group misc.int-property
Date: 2004-02-01 08:12:24 PST

One way is to post into this group or the group concerning the technical
field at hand. While this might exert some pressure on theapplicant and/or
office this can by no means counted upon and isindeed very unlikely. It is
not enough to convince public opinion butthe examiners have to be
convinced. They are very likely to totally ignore public opinion on your
particular issue. There is in fact a very little publicized procedure in
which thepublic can file their observations at no cost and does not
require apatent attorney which nevertheless is reasonably effective. The
basisis Article 115 of the EPC which reads: "Article 115Observations by
third parties (1) Following the publication of the European patent
application, anyperson may present observations concerning the
patentability of theinvention in respect of which the application has been
filed. Suchobservations must be filed in writing and must include a
statement ofthe grounds on which they are based. That person shall not be
a partyto the proceedings before the European Patent Office.(2) The
observations referred to in paragraph 1 shall be communicatedto the
applicant for or proprietor of the patent who may comment onthem."While
the third party shall not become a party into proceedings theOffice is
nevertheless obliged to consider the observations filed andrender them
available to the public and the applicant an involvedparties.How to file
third party observations:1) Get the publication number or the application
number of theapplication2) Perform a file inspection on the file, this
should not costanything if performed online:  go to:
http://ofi.epoline.org/view/GetDossierIt appears that even Online access
is available only at office hours.Here you can read not only the
application, but also allcommunications of the Office and the applicant,
including anypreliminary or definitive statements of the Search and
Examiningdivision which might be useful to know when formulating
yourobjections.3) Formulate your objections in your preferred of the three
officiallanguages of the office (English, German or French) not
necessarilythe language of the application.Unlike in oppostion (see below)
your objections may be based on anyalleged miscompliance. You are not
limited to objections to novelty,inventive step, industrial applicability,
lack of disclosure,introduction of new subject-matter but simply anything
being againstthe law, i.e. the European Patent convention, e.g. lack of
clarity.Nevertheless, in order to be considered by the examiners (there
arethree of them) more seriously you should possibly provide
documentaryevidence predating the priority date of the application which
isprinted on the publication.Your observations should be filed in writing
and it is not clearwhether e-mail is considered in writing, so better
print yourobservations, sign them and put a stamp on the envelope. Make
sure to mention following things:  a) Application or publication number,
b) That the basis for your objections is Art. 115 EPC.  c) Demand that
your observations are rendered available for fileinspection, so others can
see what you filed. The others included anybody who may be challenged
legally by the patent at hand, but really any body who can performs file
inspection at the abovespecified URL Address everything to:  European
Patent Office- Headquarters in Munich D-80298 Munich 4) What happens next?
You will not get an answer, but you are surethat the examiners and any
legal body e.g. judge or the attorney of aninfringer will have access to
your arguments. If your arguments aregood ones they diminish the value of
the patent even if it should getgranted by the office.You definitely
remind the examiners of their responsabilty and makethem aware that
somebody is looking over their shoulder.5) What if the patent is granted
anyway? If it really disturbs you may file an opposition within 6 month of
the grant of the patent. Thiscosts a relatively moderate sum of sum 600
Euros. If you are neithercitizien or resident of a country adhering to the
European PatentConvention(some thirty or so including many non EU member
states) youwill also have to pay for an attorney. Even if you are European
it isadvisable you do. You would file an opposition probably only if
youfear a concrete personal disadvantage for you or have already
receivedan infringement challenge. Keep in mind: only a negligible
fraction of patents ever gets legally enforced and even in the very
unlikely case you will ever be challenged for infringment you may
challenge the granted patent any time.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/