The European Patent System and European Integration

Translation of a revised version of the Romuald Singer Memorial Lecture held at the Patent Forum 1992 in Munich

J.B. van Benthem

Former President of the EPO

On my retirement seven years ago, I took my leave from the field of industrial property protection in which I had worked for 39 years and turned to other areas of intellectual activity. I have therefore had little contact with matters of industrial property rights since then, and indeed have taken such little notice of the latest developments in industrial property protection that I really should not present any papers on the subject. However, when I was asked to give the first Romuald Singer Memorial Lecture at this Forum, it did not take me long to decide to accept, as the lecture would be in honour of a German friend, now dead, who is owed a debt of gratitude by myself and also because of his services to European integration.

I.

It was back in 1960, 32 years ago, that we first met in Brussels, in response to an initiative by the Commission of the newly established European Economic Community to investigate the possibility of unifying the patent systems of the then six member States of the Community. Acting as representatives of these six countries in patent matters, we had been shaped by our experiences in World War II and we approached with enthusiasm and determination the task of promoting European Integration, thus helping to create a situation in which war between our countries could never again be either possible or conceivable. The group included my four German friends: Kurt Haertel, Albrecht Krieger, Romuald Singer and Klaus Pfanner.

These four friends did more than merely work with me towards a common goal. As a Dutchman who had spent some difficult years as a student in the Dutch resistance against the occupying troops, I had emerged from the war with a hostile attitude to the Germans. My friends were able to show me a different Germany, and different, democratic and spiritually open-minded Germans who had outgrown nationalism. I have of course since met many other Germans like this who from the very beginning vigorously supported the concept of European integration in the patent field and who restored my faith in Germany. But the four I have mentioned were at my side during negotiations and I am grateful to them for that. Two of them, Romuald Singer and Klaus Pfanner, have since passed away. We who remain will one day join them across the same threshold, taking with us the friendships we forged during our work together. Of the four, I was particularly close to Romuald Singer. From 1960 onwards, we worked together on the drafting of the European Patent Convention and the Community Patent Convention, not only at all the relevant conferences and on the Drafting Committee, where we had joint responsibility for the text of the two conventions and their implementing regulations in three languages, but subsequently also in the European Patent Office itself. Following the Munich Diplomatic Conference in 1973 he played an important role on the Interim Committee preparing for the opening of the European Patent Office. In the period from the opening of the Office in 1977 to his retirement eight years later, he was Chairman of the Legal and Enlarged Boards of Appeal and made a significant contribution to the establishment of the boards of appeal and the shaping of their case law. And that was not all. After his retirement he began a busy international lecturing career, organised the training of European patent attorneys at the Centre d'Etudes Internationales de la Propriété Industrielle in Strasbourg, and co-authored with his wife the first pocket commentary, almost one thousand pages long, on the European Patent Convention. These incredible achievements can be put down to three attributes: profound expert knowledge, an exceptional capacity for work and enormous enthusiasm for the European patent system. Yet this explanation still does not do Romuald Singer justice. He was above all a very friendly person, loyal not only to his family, but also to his colleagues and superiors. Therein, I think, lies the secret of his ability, gifted linguist that he was, to unite nations. And last but not least, Romuald Singer was also a very modest man.

As he would therefore not have wanted me to talk about him at such great length, I shall now turn to the second subject of my paper, a subject which was so dear to his heart: the European patent system and European integration.

II.

I should perhaps first of all remind you that the preparatory work which ultimately led to the two European patent conventions was begun in 1960 by the then six contracting parties to the Treaty of Rome in response to a proposal from the Commission of the European Economic Community. There was nothing surprising about this, as Article 2 of the Treaty of Rome stipulates that the aim of the Community is to establish a Common market and to gradually bring about the harmonisation of economic policy in the member states. And as you know, industrial property rights are instruments of economic policy in that they promote the use and spread of new technology in the economy. Furthermore, overcoming the problems posed by the fact that each Common Market country has its own national industrial property laws is an important step towards the establishment of a Common Market. This "European Economic Community phase", as Haertel called it in his Commentary, came to an end in 1965 with the production of a complete draft of an EEC patent law, which not only provided for a centralised grant procedure for unitary European patents, but also a system of law governing them.

Following a break of four years due to political reasons, work on the European patent law was resumed on a new basis in 1969, which caused Haertel to refer to it as "the great European phase". The original draft was divided up into two separate conventions. The first convention was intended to create a centralised European procedure for granting European patents which would have the legal value of a bundle of national patents having the same content. Any European country would be able to participate in this convention, whether or not it was a member of the EEC. It was thus no longer a part of European integration within the EEC, and instead became an autonomous agreement between countries of the Paris Convention, just like the PCT, for example. It lead to the Munich Patent Convention of 1973.

The second convention was to remain within the EEC's sphere of economic integration, where it would combine the granted European bundle of patents for the EEC countries into a unitary Community patent, setting out the laws governing Community patents. This became the Luxembourg Community Patent Convention of 1975.

I would now like to turn to two questions. The first question is whether, in the light of what we now know, 22 years after the decision was made to split the original convention into two, the development of the European patent system has shown that this decision was right. The second question is whether, in view of subsequent developments, it is still right to have two conventions today. I can only touch upon these questions in the course of this paper, but I feel that it is important for them to be raised.

III.

Starting with the first question, which was whether developments have vindicated the decision to create two conventions, I would say that, as far as the Munich Convention is concerned, the answer must be a resounding yes. It should not be forgotten that back in 1969 both the concept of European integration and economic necessity were forces pressing for the creation of a centralised European patent grant procedure. The patent offices of the European states were overloaded, and industry desperately wished to be relieved of the time-consuming business of filing numerous national patent applications for one invention in Europe. It therefore made political and economic sense to agree to allow the EFTA countries of Great Britain, Sweden, Austria and Switzerland to participate in the preparatory work. In this way, in addition to the six EEC states, other European countries which had close economic ties with the six and innovative, patent-oriented industries could be included in this centralised European grant system.

Furthermore, the autonomy of the Munich Convention meant that its coming into force could be made dependent not on unanimous ratification by all EEC states, but on ratification by a minimum of six states, regardless of membership of the EEC. The way in which the Munich Convention has developed, the fact that it came into force only a few years after it was signed, and the steady increase in the number of member states, which reflects the success of the centralised grant procedure, all go to prove that the decision to split the original convention into two was clearly right. Just imagine what would have happened had the convention remained within the EEC and, for example, if Ireland, with its constitutional problems which until recently prevented ratification of the Luxembourg Convention, had been able to delay the coming into force of a centralised European patent grant procedure by many years.

What would the answer to my first question be as far as the Luxembourg Community Patent Convention of 1975 is concerned? Have developments since the Luxembourg Conference shown that the decision to divide the original convention into two was the right one for the Community patent as well? Everyone in our field is familiar with the sad and shameful story of this Convention. After three successive diplomatic conferences to improve it - two in Luxembourg in 1975 and 1989, and another in 1992 (which, incidentally, failed to achieve its aims) - the Convention has yet to be ratified by some of the EEC states 17 years after the first Luxembourg Conference. And there is no telling whether it will ever come into force at all.

The difficulties could be ascribed to internal problems between the member states. First there was the British Government's problem with the settlement of disputes about infringements of the Community patent and about its legal validity. This, it must be said, led to an improved system which for the sake of simplicity I will refer to as COPAC. Then there were constitutional and political problems in Ir