Broken Governance of the European Patent Organisation

Several members of the Administration Board of the European Patent Organisation are the national patent offices themselves!

The list of representatives at the Administrative Council of the EPO highlights that the Executive is also the Legislator:

BE: Office de la Propriété Intellectuelle
BG: Patent Office of the Republic of Bulgaria
CZ: Industrial Property Office of the Czech Republic
DK: Danish Patent and Trademark Office
EE: Estonian Patent Office
ES: Department, Spanish Patent and Trademark Office
FI: National Board of Patents and Registration of Finland
FR: Institut National de la Propriété Industrielle
UK: UK Intellectual Property Office
GR: Industrial Property Organisation (OBI)
HU: Hungarian Patent Office
HR: State Intellectual Property Office of the Republic of Croatia
IE: Irish Patents Office
IS: Icelandic Patent Office
IT: Office italien des brevets et des marques
LT: The State Patent Bureau of the Republic of Lithuania
LV: Latvian Patent Office
NL: Netherlands Patent Office
NO: Norwegian Industrial Property Office
PL: Patent Office of the Republic of Poland
PT: National Institute of Industrial Property
RO: State Office for Inventions and Trademarks
SE: Swedish Patent and Registration Office
SI: Slovenian Intellectual Property Office
SK: Industrial Property Office of the Slovak Republic
TR: Turkish Patent Institute

1. Does the Council recognises that there is a lack of seperation of powers between the legislative powers and the executive powers in the European Patent Organisation?

2. How does the Council views the seperation of powers between the legislative and the executive powers in the future European Patent System?

3. How does the Council views that the same lack of seperation of powers may happen inside its own institution?


The SUEPO is mentioning the governance of the EPO as an heated debate:

On June 19th the staff of the EPO in Munich striked (photos…) against the undermining of the European Patent System by the body entrusted with its governance, the Administrative Council. Simultaneously there was a demonstration held in Bern, in front of the Swiss Patent Office - home of Mr. Grossenbacher, the Chairman of the Administrative Council. National and individual interests (many of which financial) are dominating the decision making process and making it increasingly difficult for staff to maintain a high quality output of valid patents. The issue of governance of the EPO and its effect on the future of the European Patent System is a topic of heated debate.

Suepo: Interview of Francis Hagel

Suepo: What effects (advantages / risks) does this combination of functions in a national and European offices have?

Francis Hagel: There are pro's and con's in any governance system. Certainly the fact that members of the Administrative Council are heads of national patent offices interested in the transfer of workload from the EPO raises a conflict of interest when such transfer is discussed by the Council. This may provoke criticism. However, the question is : what is the alternative ? A significant advantage of the current system, on the other hand, can be seen in the fact that the members of the Council understand very well the patent system and the operation of patent offices. Replacing the heads of national patent offices by public officials unfamiliar with the patent system and the operation of patent system, or involving the EU institutions in the governance of the EPO, could entail serious risks for the EPO.

Suepo: Interview of Dietmar Harhoff

3. Internal EPO structures

The Administrative Council runs the EPO together with the President. Most of its members work at national patent offices.

What effects does this combination of national and European offices have?

Professor Harhoff: It is undoubtedly good that the European Patent Organisation benefits from the experience of national institutions and experts. However, there are problems, on principle, with the fact that the EPC contracting states, or rather their national offices, profit financially from EPO-granted patents by virtue of their 50% share of the renewal fees, yet simultaneously would have to approve any measures leading to a greater focus on quality and thus to fewer patents. That is indeed an unsatisfactory situation requiring correction in the long term. The whole fee system is characterised by cross-subsidisation: expensive examination is partly financed by renewal fees. That of course creates incentives to grant as many patents as possible. The Academic Advisory Council report did in fact criticise this.

DigitalMajority: EPO staff blame Admin Council for EPO woes

Last week a dramatic EPO document fell into our hands. "Governance of the EPO: a Staff Perspective" documents internal conflicts in the EPO, staff versus management, in which the Administrative Council (AC) and President have almost totally lost the confidence of the EPO staff. In 2004, just 8% of staff expressed trust in the AC, and 28% in the President. In 2006 this figure had fallen to 4% and 7%.

The report - written by staff representatives - avoids criticism of the President, and focuses its ire on the Administrative Council, citing the conflict between national and personal interests, and those of the EPO.

Suepo: Interview with Dr Ulrich Schatz

(3) What should the relationship between the EU and the EPO look like?


From my experience over the last forty years, I can only warn against diluting that clear position, e.g. by making the EPO a subordinate EC agency. The Organisation would then forfeit its budgetary independence, which has so far ensured both Office and staff virtually ideal conditions in technical, accommodation and manpower terms. This would also put paid to any prospect of achieving a comprehensive and efficient European patent system including the post-grant phase as has been conclusively shown this past year by the EC's renewed failure to create a Community patent.

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