The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities.

  • Great Britain. Parliment. House of Lords. Select Committee on the European Communities.
Date:
1998
Catalogue details

Licence: Open Government Licence

Credit: The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities. Source: Wellcome Collection.

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    rr 4.3, Employee’s Inventions (18) In my experience there are not so many disputes between patentees and employees. It is my view that while any harmonisation in this area is likely to seek to provide employee protection, employers’ and employees’ federations are the best bodies to comment on this question. 4.4 Formalities, patent agents etc (20) Harmonisation of formalities should in my view be left to the harmonisation discussions under the PLT being chaired by WIPO. With regard to patent attorneys, etc. notwithstanding any freedom of movement of patent attorney’s services across borders, the requirement of an address for service in the different countries is still a necessity since National Patent Offices and Courts need a local address to serve papers in order to start the running of terms. This does not in itself preclude anyone from sending statements or documents in the language of the procedure directly to the Patent Offices or Courts or to make payments directly. As far as the patent attorney’s profession is established by law in a given country, Directive 77/249 EEC for the freedom of services of lawyers should apply also to the services of patent attorneys of other countries in which such a profession is likewise established and to the extent to which the two professions are comparable. However, in countries having no such profession established, the freedom of services would not be restricted. The freedom of services is restricted according to Art. 60 Rome Treaty to only occasional or passing services and does not extend to the regular provision of services into a given country. Such a service— regular legal advice in the law of another country or similar actions—needs national qualification through an adaption period or an aptitude test. As a side-note, it should be said that the EPO examination unfortunately does not contain the full legal breadth of National patent attorneys qualification (not even in patent law far less in general law applicable to patents) and thus would not suffice for the application of freedom of services under Directive 77/249 EEC since EPO representatives cannot generally be equated to qualified National patent attorneys (see later more substantive reasoning). It is, however, to be desired that in Community patent infringement and revocation procedures the qualified european representative as also qualifed National patent attorneys should be allowed to represent patentees and defendants provided that his qualification is supplemented by an examination of the pertinent material and procedural law. As far as such a Court (first instance) is however subject to National rules, only those patent attorneys could represent who have acquired the respective National qualifications in countries where a qualified profession is established—likewise without restriction due to nationality or domicile. The wish to have “a single representative, domiciled in one Member State, acting for his client vis-a-vis the Patent Offices of other Member States” can in fact only become reality without restrictions for those Member States in which everyone can call himself patent agent or patent attorney without any qualification and without any licence to represent thirds professionally before Patent Offices and Courts. In the other countries where the profession has a high National qualification and is regulated, the profession of patent attorney has to be treated as a legal profession akin to lawyers. There are twelve such countries, and the respective titles are: Austria Patentanwalt Belgium Mandataire Agréé/Erkend Gemachtigde Finland Patenttiasiamies France Conseil en brevets d’invention Germany Patentanwalt Great Britain Patent Attorneys Ireland Patent Agent Italy Consulente in Propriété Industriale Luxembourg Conseil en Propriété Industrielle Netherlands Octrooigemachtigde Portugal Consultore em Propriedade Industrial Spain Agente de la Proprieded Industrial 4.4.3 Professional Qualifications I have no information that the aptitude tests as laid down by the Diploma Recognition Directive 89/48/EEC in the above mentioned countries is in practice not meeting these requirements or that those examinations are not in accordance with the Gebhard case (ECJ 30 November, 1995 C-55/94 [1995]). As concerns the European Qualifying Examination, this does not fulfil the necessary requirements in the mentioned countries although it leads to a certain reduction of the fields of national examinations. First of all, the European Qualifying Examination does not cover all fields of industrial property like designs, utility models, trade and service marks, copyright (especially software and databank protection), plant variety rights, parts of unfair competition law etc. It also does not cover all parts of general laws applicable to patents