27 March 2010

Forthcoming Changes in the EPC: Filing Divisionals

On 1 April 2010 a number of changes to the Implementing Regulations of the EPC will enter into force (see Decision CA/D 2/09 of the Administrative Council of 25 March 2009 and OJ 2009, 296). These amendments can be roughly classified into
Below the new requirements as to filing of divisional applications are briefly addressed.

Amended Rule 36 EPC (terms for divisionals) entering into force on 1 April 2010 reads:
  1. The applicant may file a divisional application relating to any pending earlier European patent application, provided that:
    1. the divisional application is filed before the expiry of a time limit of twenty-four months from the Examining Division's first communication in respect of the earliest application for which a communication has been issued, or
    2. the divisional application is filed before the expiry of a time limit of twenty-four months from any communication in which the Examining Division has objected that the earlier application does not meet the requirements of Article 82, provided it was raising that specific objection for the first time.
  2. A divisional application shall be filed in the language of the proceedings for the earlier application. If the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application. The divisional application shall be filed with the European Patent Office in Munich, The Hague or Berlin.
Voluntary Divisionals: According to new Rule 36 (1) a EPC, a divisional application may be filed in a pending application
  •  within 24 months as of the first communication of the Examining Division in the earliest application of a group of linked parent/divisional applications in which the first communication has been issued (Rule 36 (1) a EPC). 
    In case a number of divisional applications have already been filed when the first communication is issued for the parent application, the resulting 24-months term for filing voluntary divisionals is not only pertinent for the parent application for which the communication has been issued, but also for all pending (and future) divisionals thereof. In rare cases it may also happen, that a first communication of the Examining Division is not issued for a parent application but for one of its divisionals. In this case the resulting 24-months-term is also pertinent for the parent application and each further divisional application.

    Mandatory Divisionals: According to Rule 36 (1) b EPC, in a pending application a divisional application may also be filed
    • within 24 months as of any specific non-unity objection raised by the Examining Division for the first time (Rule 36 (1) b EPC).
    If a non-unity objection pursuent Art. 82 EPC is issued for a patent application, a 24-months term starts within which divisional applications may be filed, totally independent on the term for filing voluntary divisionals according to Rule 36 (1) a EPC. 

    Unresolved issues. Even though not yet confirmed by the EPO or its Boards of Appeal, I assume that within the term for filing mandatory divisionals, only such divisionals may be validly filed that cover subject-matter that needs to be cancelled from the application which was objected to, in order to overcome the non-unity objection raised.

    Further, since new Rule 36 (1) b EPC also requires that only a non-unity objection that has been raised for the first time may initiate the term for filing a mandatory divisional, it currently appears unresolved, whether or not the issuance of a non-unity objection in a parent application prevents initiation of a term for filing a mandatory divisional in a divisional application, in which the same non-unity objection is later raised as well.

    Entering into force: Amended Rule 36 (1) EPC will apply to all divisional applications filed on or after 1 April 2010, i.e. the new terms for filing voluntary and/or mandatory divisional applications have to be observed for all applications that are pending on 1 April 2010.

    If a term for filing volutary or mandatory divisions according to Rule 36 EPC expires before 1 April 2010, that term is extended until 1 October 2010. That is, the earliest possible expiration date of the terms according to amended Rule 36 EPC is 1 October 2010. Consequently, for all pending applications in which the first communication of the Examining Division was issued on or before 1 April 2008, the terms for filing voluntary divisionals end on 1 October 2010.

    Conclusion: I recommend that applicants should carefully review their pending applications with respect to the above issues. If a pending application is important, it may be an option to precautionally file a divisional application before 1 October 2010 just to be on the safe side if the imprtant application gets stuck in the proceedings up to grant. 

    There also were some speculations among patent attorneys that it could be an option to provoke a non-unity objection (and thus a new 24-months term for filing a divisional) if a divisional application needs to be filed after the term for voluntary divisionals has expired. However, I assume that Examiners will simply not allow amendments that lead to non-unity of the application, based on Rule 137 (3) EPC which reads "After receipt of the first communication [...] the applicant may, of his own volition, amend once the [application, whereas] no further amendment may be made without the consent of the Examining Division".

    In case any questions should occur regarding the above matter, you may always call me of send an e-mail.

    26 March 2010

    Patent system really has had its days?

    My colleague Axel Horns, author of the popular IP Jur blog, has drawn my attention to the astonishing Guardian article "patent system has had its days" of Philip Soos, who considers himself an "intellectual property rights researcher".

    Mr Soos is very concerned about pharmaceutical patents not only because of their enormous "tangible cost facing consumers and taxpayers, [including e.g.] expenditures for the patent office, patent enforcement, the judicial system" but primarily due to "numerous intangible costs, [such as] misdirection of R&D toward copycat and lifestyle medicines, corruption of journals, fraud, transaction costs, litigation, anti-social behaviour, high-pressure advertising, conflicts of interest within the medical profession, counterfeits" and since "the deaths caused by the patent system [...] is likely to number into the millions".

    His straight forward suggestion for a "solution to this mess" is based on Dean Barker's 2004 study on "four alternatives to patent-financed prescription drug research",  who, in turn, referred to left-winged Congressman Dennis Kucinich's earlier proposal to finance pharmaceutical research through a set of competing publicly supported centers ("The free market drug act of 2004"). Mr Kucinich claims himself to have, inter alia, authored and co-sponsored legislation to create a national health care system and lower the costs of prescription drugs, and recently was accused by the New York Times to prefer a "fully government-run, Medicare-for-all approach".

    From Mr Kucinich's ideas and Mr Barker's follow-up study, which in the six years from its publication did not receive too much attention, Philip Soos basically learned that instead of using "a 15th century medieval economic system [...] to finance R&D in the 20th and 21th century" 
    the government should directly perform the R&D as a public good and let firms produce medicines, as a private good, at competitive free-market prices.
    For obvious reasons, this approach is also liked very much by the (Swedish) pirate party.

    While Mr Kucinich's original proposal does not appear to be public on the internet, the cited study of the "Center for Economic and Political Research" (CEPR), a Washington-based think tank, sketches a far more balanced and less revolutionary approach than one would expect from Mr Soos's "solution to this mess":
    The proposal by Dennis Kucinich establishes a set (e.g. 10) of publicly funded research corporations to conduct drug research. [...] The corporations would each fund research, under an obligation to make all findings fully public in a timely manner, and would place all patents in the public domain. [...] Existing drug patents would remain in effect (although it does not preclude price controls or parallel imports), and pharmaceutical companies could still obtain new patents. However, they would run the risk that the new drugs they develop would be competing with comparable drugs that are being sold as generics.

    The Kucinich system relies on competition between the government research agencies –with the threat of being dissolved due to poor performance – to ensure that research dollars are allocated efficiently. However, if some, or most, of the agencies are poorly managed, and/or the review commissions are incapable of effectively evaluating each corporation’s performance, then there is a risk that the research funds will be inefficiently allocated for sustained periods of time. Kucinich does not require eliminating the current patent system, if the public agencies did not pursue a particular line of research, presumably private drug companies would fill the gap.
    And further, regarding the essential point of political interference in pharmaceutical research, Mr. Barker clearly sees the risk
    that political factors will directly affect the direction of research. [...] The interference could either take the form of imposing inappropriate values on the process (e.g. downgrading the value of new contraceptive pills/devices) or using political connections to influence the process. An example of the latter would be using political connections to increase the effectiveness rating of a particular drug. For example, Congress could prohibit the funding of research into certain areas. Also, there would always be the possibility of using political connections to steer research funds to particular researchers.
    Now, there appears not to be much left of Mr Soos' snappy interpretation of the Kucinich approach on funding pharmaceutical research. He is so enthusiastic about the idea of state-run R&D as public good, that he does not hesitate to equally suggest his solution for "software, journal, textbook, book, game, comic, film and fashion industries", completely disregarding the fundamental differences of the products of such industries over pharmaceutical products. Ms Soos' economic vision would in fact be the end of our present free market economy and would certainly not represent something new and modern, but, at best, another variation of socialistic economy - which, if comming true, meant that not only the patent system has had its days.

    Before publishing striking articles, Mr. Soos should have better done some profound investigation on the approach he supports, and especially he should have considered Mr Barkers warning that his
    assessment is obviously preliminary – and certainly does not consider all relevant factors, hopefully it will stimulate further discussion of the merits of these four proposals, as well as contribute to the development of other alternatives to the patent system.
    Instead of contributing to the discussion, which of course would be much appreciated, Mr Soos not only took the Kucinich approach at face value without any critical review and, rather naively, published popular and oversimplified theses in the Guardian. Frankly speaking, the article does neither qualify Mr. Soos as an sufficiently accurate journalist nor as a serious intellectual property rights researcher, as which he apparently likes to be seen. In fact, in view of this article, one does not immediately feel the desire to learn more about Mr Soos' activities and expertise in the field of IP research, which, however, would not be not too easy anyway, since a google search does not reveal any related work.

    22 March 2010

    Dangerous Closeness

    In his article "Gefährliche Nähe" published on 11 March 2010 in German nationwide weekly quality newspaper "Die Zeit", historian and free author Bernd Ulrich comments on the current dispute on child pornography on the internet in Germany, which was lately triggered by recent discoveries of child abuse in convents, reform schools and catholic children's choirs. He asks whether our (i.e. the German) society drives into moral chaos and presents two indications for such a thesis, namely, on the one hand side, the cancelling of the blocking of child pornography websites by the German federal government and, on the other hand side, a novel rushing the best seller lists in which the main character is excited by child pornography.
    During this abuse debate, but apparently unaffected thereof, the German center right government [christian-liberal coalition of CDU/CSU and FDP] decided to cancel the act on blocking of child pornography websites, which has only been set up before the latest federal elections in Septmber 2009 as a reaction on federal secretary Ursula von der Leyen's (CDU) confrontation with an extreme part of the internet community. While the internet geeks thought that website blocking was (technically) useless and the beginning of internet censorship, the secretary and her former grand coalition of christian CDU and socialdemocratic SPD, on the other hand, wanted to be able to block pertinent websites since deletion of content hosted abroad usually is impossible.

    Now, what led to the change of opinion within the CDU? Was it a technical or legal innovation that facilitates the deletion of child pornographic content hosted abroad and thus rendered website blocking unnecessary? Something quite different has happened. In the 2009 federal election the "censorship" fightnig "Piratenpartei" received two percent of the votes, which alarmed the CDU enough to establish new priorities, according to which the circulation of child pornography via the internet is not as bad as the censorship fears of some internet geeks.
    Apparently, the German federal government has surrendered to the self-appointed defenders of internet freedom which appears to explicitly cover any abhorrent material whatsoever. Up to now, neither the internet freedom activists the Piratenpartei and even less the governing center right coalition was able to coherently and convincingly explain why owing or disseminating printed media related to child pornography is a crime and blocking child pornography websites is "censorship".

    The anti-censorship activists in the walk of the Piratenpartei tend to almost exclusively argue technically and to virtually avoid any moral or legal issues - in fact their only comprehensible (and true) argument is that internet blockings can easily be circumvented. One likes to add that this arguement does not have any weight at all, since it is the very nature of any legal provision that it may be circumvented - which is then called a contravention.

    The pure technical argumentation of the internet activists appears to show a lack of interest in a workable solution for a social problem but rather discloses self-centered interests, i.e. an internet without (moral or legal) limits and, of course, without intellectal property rights. Talking technically, however, the President of the Federal Crimal Agency (Bundeskriminalamt, BKA) recently exlained that deleting content on overseas servers (i.e. the joint strategy of both the Piratenpartei and the German government) is virtually impossible - which does not come as a complete surprise, since the act on blocking of child pornography websites was based on exactly this technically finding.

    As a second indication of moral deficiencis Bernd Ulrich identifies
    the novel "Axolotl Roadkill" [that] was written by 17-year-old Berlin woman Helen Hegemann who comes from an educated milieu which torments its children with almost unlimited tolerance. These liberal adults can explain and justify everything they see and do. Consequently, Ms Hegemann wrote a novel in which every thought is teared up and every statement is shattered, with no action and no thought coming to an end. Some may find this interesting, some not.

    However, the author did not consider this as a sufficient provocation but also had to intersperse scenes in which children are sexually abused and brutally tortured. [...] Most surprisingly and irritatingly, however, these child pornographic scenes did not play any role in a madly furious feuilleton battle of that book. Rather, the disputants concentrated on the question of whether or not plagiarism improves the novel.

    And all that at the same time as elsewhere the abuse debate raged and the newspapers were full of news on padres downloading child pornography from the internet.
    Obviously, hermetics is not a privilege of monasteries and boarding schools and indifference is not only an attitude of a dull and cynic society, since otherwise the irritating and disturbing contents of that novel should have evocated much more attention and emotions as compared to its sources.

    20 March 2010

    INTA Annual Meeting 2010 in Boston

    I will attend the annual meeting of the International Trademark Association (INTA) from 22 to 26 May 2010 in Boston. INTA is one of the largest and leading trademark related NGOs and its commitees are involved in all kinds of political developments in the IP field around the world. Its mission includes representing the trademark community, shaping public policy and advancing professional knowledge and development.

    So if you are attending this year's annual meeting, we may meet there for a coffee and discuss topics of mutual interest. In case you seek professional support in German or European IP issues, myself and my partners at our full service IP firm KSNH Patentanwälte would be happy to assist you.

    18 March 2010

    Forthcoming Changes in the EPC: Examination

    On 1 April 2010 a number of changes to the Implementing Regulations of the EPC will enter into force (see Decision CA/D 3/09 of the Administrative Council of 25 March 2009 and OJ 2009, 533). These amendments can be roughly classified into
    Below the amended rules affecting the examination procedure are briefly outlined.

    According to amended Rule 137 EPC (voluntary amendments) the applicant may amend description, claims and drawings of an application on his own volition only in the following cases:
    • in a Euro-direct application
      ⇒ in reply to the extended European search report (EESR); or

    • in a Euro-PCT application

      • where the EPO did not act as International Search Authority (ISA), i.e. the International Search Report (ISR) was not drawn up by the EPO
        ⇒ in reply to the supplementary European search report;
      • where the EPO did act as International Search Authority (ISA), i.e. the International Search Report (ISR) was drawn up by the EPO
        ⇒ in reply to the written opinion of the International search report.
    This rather course scheme may be specified in more detail related to the various procedural sitiations that may occur in Euro-direct and Euro-PCT applications:

    Procedural situations in Euro-direct proceedings
    • If the examination fee was not paid upon filing, the examination fee has to be paid and a reply to the search opinion - established by the EPO within the extended European search report (EESR) - has to be file within six months as of publication of the European search report (Rules 70 (1), 70a (1) EPC).
    •  If the Examination fee was paid upon filing, the declaration as to “proceed further” has to be filed and a reply to the search opinion - established by the EPO within the extended European search report (EESR) - has to be file within six months as of publication of the European search report (Rules 70 (2), 70a (2) EPC).
    • If the Examination fee was paid upon filing and the declaration as to “proceed further” has been waived by the applicant (Rule 10 (4) EPC), a reply to an office action which in this case has been established by the EPO within the extended European search report (EESR) has to be filed within four months with two months extension possible.
    While the first two options are frequently used, that latter option appears not to be very common even though it may accelerate the proceedings.

    If the applicant waives his right to receive the invitation pursuant to Rule 70 (2) EPC and thus confirmes that he desires to proceed further when the search report is transmitted to him, the search report is accompanied by a regular communication under Art 94 (3) EPC or, if the application is in order for grant, a notification under Rule 71 (3) EPC. Before issuing such communication, however, it will be checked whether or not conflicting European applications according to Art 54 (3) EPC exist, which, as a general searching rule, have not been checked during the European search.  

    Procedural situations in EURO-PCT proceedings:
    • If the EPO did not act as International Search Authority (EPO ≠ISA), i.e. the written opinion of the International search report (ISA) was not drawn up by the EPO, the EPO issues a notification pursuant Rule 161 (1) EPC after which voluntary amendments may be conducted within one month (+ 10 days grace period).
      The EPO then draws up the supplementary European search report with a search opinion (R 161 (2) EPC), whereas the term to file a declaration as to "proceed further” and a reply on the search opinion has to be filed within six months (+ 10 days grace period). 

    • If the EPO did act as International Search Authority (EPO=ISA), i.e. the written opinion of International search report (ISA) was drawn up by the EPO, the EPO issues a notification pursuant Rule 161 (1) EPC after which a reply to the written opinion has to be filed already within one month (+ 10 days grace period), unless a reply has already been filed upon entering the European phase.
    Especially in the latter case (EPO=ISA) the time frame for filing a substantive reply is rather narrow. It thus is highly advisable to start preparing the mandatory reply shortly after the written opinion has been issued, e.g. sufficently before issuance of the notification pursuant Rule 161 (1) EPC.

    Concluding Remarks:
    Beyond the above full terms, no (further) extensions are available. Upon failure to observe the terms, the application is deemed to be withdrawn (Rules 70a (3), 161 (1) EPC), whereas, as remedy, further processing ist possible within one month after the respective notification (Art 121 EPC).

    The above amendment shall apply to all applications for which the extended or supplementary European search report is drawn up or after 1 April 2010.

    10 March 2010

    Forthcoming Changes in the EPC: The Search Stage

    On 1 April 2010 a number of changes to the Implementing Regulations of the EPC will enter into force (see Decision CA/D 3/09 of the Administrative Council of 25 March 2009). These amendments can be roughly classified into
    • Changes affecting the search stage, 
    • Changes affecting the examination procedure, and
    • Changes affecting divisional applications.
    Below we will briefly discuss those Rules that affect the European search stage, while the remaining two issues will be discussed separately in further posts.

    Generally, the new provisions on the European search focus on inviting the applicant to comply already at the search stage with requirements such as unity, clarity and conciseness of the claims. It is tried to better streamline the proceedings up to grant by concentrating the search (and thus the examination) on only one independent claim per category and by inviting the applicant to clarify the subject-matter to be searched (and examined) as early as possible.

    Concerning the changes of the European search, Rules 43(2), 62a, 63, 64(1) EPC are relevant. According to (unamended) Rule 43 (2) EPC, not more than one independent claim per claim category is allowed, except they relate to:
    1. a plurality of interrelated products, or
    2. different uses of a product or apparatus, or
    3. alternative solutions to a particular problem where a single claim is not appropriate.
    According to new Rule 62a EPC (plurality of independent claims) the applicant is invited to indicate claims that comply with Rule 43 (2) EPC within a two-months period with no extension of term or further processing being available. If the applicant fails to present such claims, the first claim in each category is searched and substantive examination will only be carried out on the searched claims.

    Amendments to the claims are not possible prior to completion of the search and amendments relating to non-searched subject matter are generally not possible during examination, as required by Rule 137(5) EPC.

    According to amended Rule 63 EPC, (incomplete search), where no meaningful search can be conducted (e.g. because of lack of support, clarity or conciseness) applicant is invited to indicate subject matter to be searched within 2 months with no extension of term or further processing being available. If the applicant fails to comply, the EPO will either issue a declaration that search is not possible or a partial search report.

    Amendments to the claims are not possible prior to completion of the search, whereas amended claim wording will be considered and can later be introduced during examination.

    According to amended Rule 64 (1) EPC (lack of unity), where a lack of unity objection according to Art 82 EPC is raised, the applicant is invited to pay additional search fees within a two-months term with no extension of term or further processing being available. In the case of failure, a partial search report is drawn up.

    The new provisions will apply to all applications where the search is conducted after 1 April 2010.

    04 March 2010

    Utility Model Protection for Computer-related Inventions in Germany

    In Germany inventors may chose from protecting their intellectual property by a patent according to the German Patent Act (Patentgesetz, PatG) or by a utility model according to the Utility Model Act (Gebrausmustergesetz, GbmG). For a number of reasons - which are briefly outlined below - the utility model appears to be an ideal IP right for software-related inventions. However, even though both IP rights provide identical rights to exclude others from using the protected subject-matter (§ 11 GbmG), there are some major differences between patents and utility models that have to be considered before deciding for any of the two:

    • Novelty: According to § 3 (1) GbmG, an invention is novel if it has not been disclosed in writing and there has not been a public prior use in Germany before or at the filing/priority date. Prior public use outside Germany is not considered, unlike with patents.
    • Unlike with patents, there is no substantial examination done by GPTO for utility models. Before registering a Utility Model only formal requirements are checked (§ 8 GbmG).
    • Method claims are allowable only in patents, but not in utility models (§ 2 Nr. 3 GbmG), original based on an old legal doctrine according to which the subject-matter of a utility model has to fulfil a “requirement of physical expansion” (Raumformerfordernis).
    • A patent expires after 20 years starting with the application date if properly renewed whereas a utility model expires after 10 years starting with the application date if properly renewed (§ 21 (1) GbmG).
    • There is a grace period for utility models, unlike with patents. A description or use within the six months preceding the priority date of the application will not be considered as prior art if it is based on the own conception of the applicant or his predecessor in title (§ 3 GbmG).
    • A utility model is much cheaper than a patent. 
    Since a utility model is (i.) cheaper, (ii.) provides a quicker full protection, ((iii.) has reduces novelty requirements and a six months grace period and (iv.) has a reduced term of protection as compared to a patent, the utility model is far better adaptred to the innovation and product cycles of software industry than a patent. And, a German utility model may represent a basis for internantional PCT filing as well (see here for an FAQ of the GPTO).   

    Further to that, the unique splitting off procedure of German utility model law (§ 5 GbmG) may subsequently provide a full IP right if a filed patent application turns out to not fulfill the substantial requirements of patent law. A utility model can be split off from a patent application having the same contents - also to obtain flanking protection during the otherwise unprotected patent pendency period - since upon registration of the split-off utility model the invention enjoys full protection and the priority of the underlying patent application irrespective of the outcome of the patent grant procedure. Splitting off a utility model is allowable within 10 years from the date of filing of the original patent application, whereas the utility model application must be submitted within two months from the rejection or withdrawal of the patent application at the latest.

    The substantial requirements as to inventiveness of a registered utility model are examined only in cancellation proceedings before the German Patent and Trademark Office (DPMA). The utility model unit registers the utility model without previously examining if the substantive requirements are met (§ 8 GbmG). In case of a dispute, cancellation proceedings will clarify whether the registered invention is in fact new and involves an inventive step (§ 15 GbmG), in contrast to an “inventive act” as required for patent protection. However, other than this terminological difference might anticipate, established case law clarifies that the inventive step requirement of the utility model act cannot be regarded being a lower level of inventiveness as compared to the inventive act requirement of patent law (Demonstrationsschrank, BGH X ZB 27/05, 26.06.2006). 

    Protection of Computer-implemented Inventions: Despite the statutory exclusion of “processes” (§ 2 Nr. 3 GbmG) and “programs for computers as such” (§ 1 (2) Nr. 3, (3) GbmG), the decision “Signalfolge” (X  ZB 9/03, 17.02.2004) of the German Federal Court of Justice (Bundesgerichtshof, BGH) opened as door to utility model protection for computer-impelmented inventions. The underlying application claimed a system, a computer program product and a computer related to variable tariffing of Internet charges.

    The Utility Model Section of the GPTO rejected the application because the system claims were considered to relate to a method, whereas and amended claims that related to a signal sequence representing data to be transmitted via the Internet have been rejected by the Federal Patent Court (Bundespatentgericht, BPatG) in a second instance decision, also based on the understanding that the signal sequence is directed to a non-statutory method.

    However, in the third instance decision of the BGH, the Patent Court’s sentence was overruled since the BGH took the view that the signal sequence to rather represent a physical entity for which utility model protection is in deed available, based on the understanding that the “requirement of physical expansion” (Raumformerfordernis) of the Utility Model Act in force until 1968 was not applicable any more. The BGH reasoned further that exclusions from patent protection, such as the exclusion of methods from utility model protection, should always be interpreted narrowly. Further, the BGH explained that § 2 Nr. 3 GbmG rather relates to “conventional” methods such as production or operation methods but not to a signal sequence.

    That is, the BGH merely decided that a signal sequence cannot be excluded from utility model protection only due to the fact that the signal sequence may represent data to be processed by a computer. The case was thus referred back to the Patent Court to decide whether the invention relates to a computer program as such according to § 1 (3) GbmG, which would the of course render the invention unstatutory subject-matter.

    Conclusion: As a general rule of thumb, the BGH confirmed that computer-implemented inventions may - under certain circumstances - be protected by a utility model, since they cannot any more be excluded from protection for the sole reason that they may represent a method. As is known for conventional operation methods that can be protected by instead claiming a "means adapted for conducting the method" enriched with a reasonable level of structural features, a computer-implemented method may also be protected by a "computer (program product) adapted to ...". However, as a consequence of the BGH ruling, a computer-implemented invention may now also be claimed as a signal sequence representing data to be executed by a computer - as long as the executed data does not represent a computer program as such.

    02 March 2010

    President of the EPO finally elected

    Today the Administrative Council of the European Patent Organisation has elected the Director General of the French National Institute of Industrial Property (INPI), Benoît Battistelli, to succeed Alison Brimelow as President of the European Patent Office. Mr. Battistelli's five-year term as President of the EPO will begin on 1. July 2010.

    During his civil service career, which is now crowned with the EPO Presidency, Mr Battistelli has been

    • Vice-chairman of the OECD Committee on Industry and Business Environment,
    • Deputy Undersecretary for Industry especially in charge of innovation policy and competitiveness in the Ministry of Economic, Financial and Industrial Affairs, with specific responsibility for industrial property,
    • Chief Advisor to the Industry Minister, Nicole Fontaine, a former European Parliament’s President,
    • Chairman of the Supervisory Board of the European Patent Academy,
    • Chairman of the EPO's Administrative Council,
    • Director General of the French Institute for Industrial Property (INPI).
    In a first reaction, the Staff Union of the EPO (SUEPO) congratulates Mr Battistelli and further analyses that 
    the EPO has suffered as a result of the unfortunate "tandem presidency" of Mr Alain Pompidou and Ms Alison Brimelow, and emerges from it discredited and weakened. The election process that we have just seen seems to be a symptom of those last 6 years.
    Since the professional career of Mr Battistelli suggests a strong attachment to Public Service, the EPO staff hopes that he will "respect the public service mission that has been accorded to the EPO and allow the EPO to concentrate on its raison d'être, namely the search, examination and granting of high quality patents".

    This statement may demonstrate the critical feelings of the EPO staff against Ms Brimlows priorities as to "balancing the budget" and "social partnership", whereas the staff experienced to what extent "balancing the budget" takes priority over "social partnership" when 18 agency staff working at the EPO in Munich were told in the week before Easter 2009 that their employment would be discontinued at the end of that month. It is because of such experiences that the Staff Union hopes that Mr Battistelli "will demonstrate the sorely missed capacity of listening to his staff".

    The Vice-Chairman of the Administratice Council, Mr Jesper Kongstad, who has earlier withdrawn his own candidacy for President and has then been re-instated as Vice-Chairman of the Administrative Council, is now considered in a good position to take over the chair from Mr Battistelli, now that he is President-elect of the EPO. Mr Kongstad would thus directly benefit from Mr Battistelli's victory under his chairing the election process, which is why the Staff Union considered Mr Kongstad to lack the neutrality required for chairing the election process.

    In fact, this constellation (Mr Battistelli as President of the EPO and Mr Kongstad as Chairman of the Council) is exactly what the two candidates had proposed to the Council in a joint policy statement made during a Council meeting in October 2009. This issue has been raised by the EPO Central Staff Committee in an open letter to the Administrative Council, whereas the EPO Staff Union sent a letter to the Members of the European Parliament. In the meantime, by means of reply to the Central Staff Comittee, Mr Kongstad has simply made a promise to do his very best in a neutral and impartial way to find a solution.

    We shall wait and see, how the relationship between the staff of the EPO and the office's administration further evolves under  the new President - and under the new Chaiman of the Administrative Council soon to be elected.