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Guest Post: The EPO, EPC, Unitary Patent and the Money Issue

Posted in Europe, Patents at 12:48 pm by Dr. Roy Schestowitz

By unknown, who is intimately familiar with EPO matters

John Bull
1888 (in public domain): American cartoon of John Bull (England) as an Imperial Octopus with its arms (with hands) in – or contemplating being in – various regions.

Summary: Remarks on the Unitary Patent (UP) and the lesser-known aspects of the EPO and EPC, where the “real issue is money, about which very little is discussed in public…”

THE staff of the EPO generally longed for and supported the creation of a community patent, as thought that it would have meant a cure for many of the original sins of the EPC.

It was believed, or hoped, that the EPO could become in the process an organ of the European Union, which, despite all its flaws, would have most probably brought an improvement in the governance of the organisation and the lot of the staff.

“The staff of the EPO generally longed for and supported the creation of a community patent, as thought that it would have meant a cure for many of the original sins of the EPC.”Just look at the shabby display given every quarter by the dysfunctional EPOrg’s Administrative Council, dominated as it is by a self-serving clique that cows it into submission through arm twisting and client politics.

Becoming a part of the EU could have meant for staff improved conditions in matters such as taxes, pensions, union recognition and collective bargaining, legal protection, conflict resolution…

“To sum it up, the implementing regulations are rubber-stamped by minor bureaucrats dwelling way down the food chain, and not decided by national parliaments.”As for the citizens of Europe, it could have brought improvements in its control of patent law, as changing an EU Directive or Regulation is still vastly simpler than amending the European Patent Convention through a diplomatic conference, and involves some form of debate in the EU parliament.

Then there are also the EPC implementing regulations, into which many sections of the convention were transferred with the EPC 2000 revision. Like the saying goes, “the devil is in the details”, and such details are created by the EPO’s legal department under instructions of the President, and submitted for approval to the AC [see above...]. And then the AC is essentially composed of civil servants from National Patent Offices and/or National Departments for Trade and Industry.

To sum it up, the implementing regulations are rubber-stamped by minor bureaucrats dwelling way down the food chain, and not decided by national parliaments. These bureaucrats have at heart a Sir Humphrey like interest in preserving their little fiefs [e.g. the Croatian patent office], which should have been wound up long ago had there been a real will for a truly European patent.

“If those bloody foreigners can roam around your territory without needing your permission, why make more of a fuss when it comes to patents?”Among the roadblocks to a proper EU patent were inter alia languages: the EPO accepts applications in DE, EN, FR. The EU must function in 24 languages. I think that a compromise could have been found in which all languages could have been accommodated, as the number of applications stemming from Europe which are not in the three EPC official languages aren’t wholly unreasonable. TR, GR, and IT already translate their national applications before sending them on to the EPO for prior art searches and opinions on patentability.

Then there was the issue of EU membership. EPC members TR, CH, and NO do not [currently] belong to the grand design, but this didn’t have to be an insurmountable problem. These countries already accept that a foreign body, the EPO, decides on whether a patent has legal force over their territory. This organisation is already EU-dominated, and even then, the parliaments [or strongmen...] of TR+CH+NO have presently next to zilch influence in the running of the EPO.

“My feeling is that the real issue is money, about which very little is discussed in public…”Then there is the fact CH+NO are part of that other EU-invented club called “Schengen”. If those bloody foreigners can roam around your territory without needing your permission, why make more of a fuss when it comes to patents?

My feeling is that the real issue is money, about which very little is discussed in public…

“Something must yield to make work that Unitary Patent monstrosity they came up with, and that is the EPO’s staff.”Something must yield to make work that Unitary Patent monstrosity they came up with, and that is the EPO’s staff. For the language and membership issues, the EPO must remain this autonomous death start which has been hovering above the continent for 40 years. And Battleship Eponia’s “independence” is essential for making staff become what they call in French a “variable d’ajustement”, i.e., the fudge factor which will mop up all the inconsistencies in that unitary contraption.

“This could explain why Battistelli equates any sign of resistance against his iron will to be opposition to the UP.”This could explain why Battistelli equates any sign of resistance against his iron will to be opposition to the UP. Is that association even conscious?

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