About the Revision of the 1973 European Patent Convention (EPC)
Notes written by Bernard Lang on November 17, 2000.
about the November 2000 Diplomatic Conference in Munich
This revision of the
1973 European Patent Convention (EPC)
has been prepared by the European Patent Office (EPO) Administrative
Council (EPO-AC), with the
latest decisions taken on 7 September 2000.
On that basis, a Diplomatic Conference for the is to be held in Munich,
from 20 to 29 November 2000, its oganization being detailed in a
general information document.
It is important to be aware that 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.
Hence there is a potential sovereignty conflict between the EPO and
the European Union (EU).
list of members
in EPO Covernmental Conference 2000 to vote on
"Basic Proposal" to change The European Patent Convention:
GB United Kingdom
TR Turkey (to join the EPC on November 20, 2000)
The controversial issues to be evoqued in this documents concern
changes to the following articles of the EPC :
EPC article 52.2, to allow patenting of computer programs
Draft Revision Act DRA-17, page 9 and 10.), and
hence, of all intellectual processes (business methods, educational
techniques, management techniques, etc ...)
EPC article 33.1 as follows (excerpt only):
The Administrative Council shall be competent to amend the
following provisions: (a) ... (b) Parts II to VIII and Part X of this
Convention, to bring them into line with an international treaty or
European Community legislation relating to patents; [...]
Draft Revision Act DRA-10, page 6.)
It is to be noted that article EPC 33.1 would enable the EPO
Administrative council to enact on its own the proposed change to
article EPC 52.2 (wich is included in part II of the Convention), by
alledging that it is necessary for conformity with existing
international treaties, through an extremely extensive and
non-consensual interpretation of such treaties. Given the past
record of the EPO regarding extensive interpretations of law
and treaties, and given the EPO propensity to bend rules that have been
fixed, such a behaviour would only be to be expected.
The EPO already exhibits a clear lack of democratic control.
Adoption of the proposed modification to EPC 33.1 would only worsen
Regarding EPC article 52.2
Concerning the inclusion of a modification of EPC article 52.2 to
allow the patentability of software, and hence all intellectual
methods, including for example business methods, there has been a vote
by the (then) 19 members of the EPO Administrative Council (EPO-AC)
during the september 7, 2000 meeting.
The votes were apparently as follows (certified information seems hard
for 10 votes AT,BE,CY,CH,GR,IR,IT,LI,MC,NL
against 8 votes DK,DE,ES,FR,LU,PT,SE,UK
abstain 1 FI
It is to be noted that:
Several countries agree that, given this situation, it would be
wiser to wait to know the position of the EU before making any
decision at the EPO level. Noting the lack of consensus in Europe on
these issue, both in the population and among the economic agents, the
EU General Directorate for the Internal Market launched a
and a premature vote on this issue by member countries would be an act
of defiance to the European Union, and could create a very messy situation.
- this short majority was obtained without
informing the concerned states of the economic and societal issues at
hand (if only because the EPO never bothered to analyze the issues).
Several states that voted in favor of software patentability may have
(and seem to have) changed their point of view after being informed by
- when restricted to the EU member countries, this majority of 10
to 8 becomes a minority of 6 to 8. Hence the EU could very well adopt
an opposite point of view, leading to a conflict of sovereignty
between the EU and the EPO. Asked about this situation at a meeting
on this topic, a member of the General Directorate for the Internal
Market stated that the EU, and its courts, could decide to disregard
the patents granted by the EPO.
- The countries against, though a minority in states, are a very
strong majority in population.
What can be done: the procedures of the Diplomatic Meeting
The change to EPC is proposed as a single package Draft Revison Act (DRA) of many modifications including for
article 52.2 and also 33.1 (see references above), prepared by the EPO.
A commented version is available as the MR/2/00 Basic Proposal : see page 27 and following for article
EPC 33.1, and see page 43 and following for article EPC 52-2.
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). Since the package contains many needed improvements to the
EPC, countries will be reluctant to reject it.
However, the modifications to articles EPC 52.2 and to EPC 33.1 are
quite independent and should not be pyggy-backed on the rest of the
proposal as a bundled all-or-nothing decision.
The meeting will follow rules of procedure that have been defined
by the EPO-AC in the Draft Rules of Procedure (DRP).
This document 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 33.1 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, i.e. remove EPC
52.2 and EPC 33.1 by unbundling the proposal, instead of a majority of
15 countries to accept them.
Note: while this 2/3rd rule may be a proper way of handling a complex
array of interrelated modifications, so as to avoid endless
discussion, using it to bind in the package completely independent
issues can only be considered a fraud with respect to the Convention
voting process, especially considering the lack of transparency of the
The following is a way out of this blocking situation that has been
set up by the EPO Administrative Council:
There are 2 basic ways this can be achieved:
The members of the diplomatic conference may be reluctant even to
use the soft alternative, since there is a risk that it may restart
several closed discussion on various topics. However, they may
decide to request this change of procedure only to the proposed changes
for articles EPC 33.1 and EPC 52.2 since these are independent of other
HARD (by 6 countries)
threaten to reject the whole DRA package proposal,
i.e. block any change to the Convention (the whole meeting being
hence a failure), if not enough countries accept to vote the
removal of modifications to EPC 52.2 and to EPC 33.1, and so get
the 2/3 majority. This can be done if 6 countries agree to it.
SOFT (by 11 countries, i.e. simple majority)
to be done very early in the meeting, during item 2 of the
(Consideration and Adoption of the Rules of Procedure)
use articles DRP 32(3) and DRP 38 of the Draft Rules of Procedure (DRP) that states, together, that
the procedure rules can be change by a simple majority, i.e. 11
countries (what happens when it is 10 against 10 ?) or less if some
Using these 2 articles DRP 32(3) and DRP 38, a vote can change the rule
DRP 32(2) so that the 2/3 majority can be changed into a simple
majority for making amendments to the whole Draft Revison Act (DRA)
Then later, during the discussion of the DRA, use simple majority to
remove the changes to articles EPC 52.2 and EPC 33.1 from the DRA.
Remember also that the HARD technique can be used if the SOFT one does
not work or is not sufficient.
It is to be regretted that such methods have to be used. But the
responsibility lies exclusively with (at least some members of) the
EPO-AC who, for reasons known only to them, tried to force the issue
with complete disregard for the democratic process, without ever
attempting to analyze the impact (obviously significant) of their
decisions, and without adequately informing the public and its
political representatives as should be their duty.
It is not clear that all countries are aware of what is hidden in
the proposed modification of EPC 33.1. More lobbying and dissemination
of information should be done on that issue in the concerned
Furthermore, this procedural situation should also be explained, so
that proper instructions may be given to the representatives of each
country. Some have been known to be remarkably unimaginative when
having to support political choices and decisions that do not please
their IP professional community.
This document has taken issue only with the modifications to
articles EPC 52.2 and EPC 33.1 the Draft Revison Act (DRA). It is by no
means an implicit support for the rest of the DRA, or a statement that
we see nothing wrong with the rest of the DRA. It is simply that we
have not had the time to analyze this document further. For all we
know, the DRA could be full of other traps.
EPO European Patent Office
EPO-AC EPO Administrative Council
DRP Draft Rules of 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
the revision that is being proposed by the EPO, and has
to be accepted with or without amendments to change the
EU European Union