The agenda drawn up by the Chairman of the Administrative Council on May 28, 2004 addresses "possible models of co-operation between the European Patent Office and the intellectual property offices of EPO member states, with emphasis on the PCT work," including
- Which of the EPO goals are significant here?
- What opportunities does the EPO currently have at its disposal?
- What should be considered in determining the political and operational viability of various measures?
- How should the debate be organised?
According to the Chairma of the Administrative Council's first outline of PCT Co-operation models on September 23, Member States have contributed initial views covering a broad spectrum of options and aspirations that also have in common:
- commitment to sustain the success of the European patent system and of the European Patent Office (hereafter EPO)
- commitment to meet the needs of users of the patent system in Europe
Although diagnosis of the problems, challenges, and solutions facing the EPO and its member states vary, the key concerns that emerged are:
- delivering effective service to users in 30 member states rather than a founding handful
- responding to linguistic diversity
- sustaining high quality patent grant
- managing workload
- availability of patent expertise to support innovation across Europe
The scope of the discussion therefore should be to define PCT co-operation against the background of the needs expressed by the National Patent Offices to obtain proper training and support, and of their wish to maintain local capacity in order to best serve their user community by delivering local IP ssistance. It is also understood that at this stage such a PCT strategy should be designed without any prejudice to other discussions on connected issues (such as information technologies). As a consequence, possible goals (a non-exhaustive list, not a hierarchy) for the Administrative Council discussion might be:
- maintaining the integrity of the EPO, given its new geography, and bringing the European patent system closer to its users
- promoting further harmonization of patent procedure in Europe
- enabling the EPO to become the standard setter for the PCT (including quality and price as well as global service)
- keeping the EPO on a solid financial footing
- exploiting and developing the EPO as a "beacon of excellence" and a disseminator of best practice for Europe.
According to the Chairman, there are several models which might deliver some or all of these goals:
- "Status quo ante": the EPO as the PCT authority for Europe, with no partnership agreement with any member states. A stark reassertion of the principle of centralization, with no exceptions, which might meet the goals listed under points 1-4 above, but does little to address concerns expressed by member states in this debate.
- "Status quo": current partnership agreement continues, but no extension. Same weakness as "status quo ante" in relation to the expressed concerns of member states on points 2-5, and perhaps an admission of failure, which would make goals harder to attain, and probably fails to address the goal listed under point 1.
- "Status quo plus": partnership agreement extended to other member states who are eligible and wish to proceed in this way. Debate in the AC over the last two years has shown that this is not a policy which commands clear support and is seen by some as threatening the integrity of the EPO. It would probably make goals (points 1 to 5) harder to attain.
- New Model A: Multilateral framework agreement which permits ISA status for any qualified (i.e. PCT minima plus operational quality) EPC state with a non-EPO language. Scope for sub-regional cooperation. Applicants free to choose EPO or local ISA. Written opinions recognized. A radical development, which may make
goals under points 2 to 5 harder to attain and requires a rigorous and possibly uncomfortable commitment to quality management. This would require a major contribution from the Office in training. ISA status would be conditional, not automatic, and access to ISA status and work might easily become a political issue in the AC.
- New Model B: The EPO to offer operationally driven PCT cooperation to any interested member state with a non EPO language. EPO joint clusters would cooperate with locally based staff in national offices with appropriate training. EPO standards would effectively be bedded out in participating national offices, whose contribution would be managed by the EP Office. There would be some flexibility for managing work load fluctuation. This model offers quite a good fit with member States. expressed concerns and with goals (points 1 to 5). But, even at Joint Cluster level, there is scope for politicization of work sharing. Applicant choice is absent. Again there would be a need for rigorous and possibly uncomfortable management of the process. National offices using an EPO language would have
to find other ways to engage with the goals listed under points 1, 2 and 5.
The Chairman then concludes that "In November 2004, the Council should take a decision on a model to be then further elaborated."