2023 – A year of remarkable changes in the European patent landscape

Peter R. Thomsen, epi President

Dear members, colleagues and students,

During the year 2023, which is coming to an end in the next few weeks, we have seen remarkable developments in the patent landscape of Europe affecting all of us in our professional life. After around three years of pandemic, 2023 was the first year with operations and processes back to a more normal stage, although some developments that were triggered by the pandemic have sustainably changed our way of working, e.g. the increased use of videoconferencing for meetings, events and even oral proceedings.

With the Unitary Patent and the Unified Patent Court (UPC), that became reality and operational for a territory of 17 countries in 2023 after decades of discussions and several failed attempts, 2023 marks the year when the vision of some previous generations of legislators and patent attorneys in Europe became true, to further develop the patent landscape in Europe by complementing the regional EP system with a single patent title being common to several EPC countries and with a pan-European Court specialised in Patent law that has the potential to further harmonize so far quite fragmented patent litigation in Europe. Our profession plays an important role in the new system and some of our colleagues with an additional appropriate qualification such as a European Patent Litigation Certificate can fully represent clients before the new UPC. In that connection, I would like to remind all colleagues who fulfil the requirements and intend to benefit from the transitional provisions to submit their registration as representatives before the UPC at latest by 31 May 2024. epi will continue to work closely with the respective governance bodies being the Administrative Committee of the UPC and the Select Committee of the European Patent Organisation for the Unitary Patent to ensure an operation and procedures that can be practically implemented by the users. We will also of course monitor the first decisions from the UPC.

Together with the EPO and many other stakeholders, epi celebrated the 50^th anniversary of the European Patent Convention. I believe that since 1973 the EPC has proven to be fit for purpose and sufficiently flexible to deal with any challenges, e.g. due to new science and technology. epi will contribute also in the future to keep up the EPC system to cope with new emerging technologies such as the expected impact of Artificial Intelligence. In October, epi organised its own event on the occasion of the 50^th anniversary of the EPC that was dedicated to recognising the enormous contribution of the voluntary work of the epi/EPO joint Committees and bodies who have organised and carried out the EQE over the past 44 years.

From the times of its inception came also the so called 10-days rule for calculating deadlines in connection with service of documents issued by EPO, to which we gave farewell in November. A free recording was offered by epi to all members to explain the implications.

In 2023 we obtained clarification from the Enlarged Board of Appeal, in joint cases G1/22 and G2/22 that the EPO has jurisdiction on checking entitlement to priority under the EPC, but that there is a rebuttable presumption of entitlement, which also applies for Euro-PCT applications. On the contentious area of how far plausibility of an invention at the filing/priority date should influence patentability examination, the Enlarged Board issued a decision in case G1/21 which stated that evidence submitted by a patent applicant or proprietor to prove a technical effect relied upon for acknowledgement of inventive step of the claimed subject-matter may not be disregarded solely on the ground that such evidence, on which the effect rests, had not been public before the filing date of the patent in suit and was filed after that date. A patent applicant or proprietor may thus rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention. However, there remains some questions open from the decision on the practical requirements of European Patents when it comes in particular to plausibility of prophetic or very broadly described inventions. At the end of 2023, there is one case pending before the Enlarged Board of Appeal, case G1/23, which concerns whether the composition of a product that was publicly available before the filing date of a patent, but where the skilled person was not able to analyse the internal structure constitutes part of the state of the art, and to which extent other public information on the composition of that marketed product before the filing date shall be taken into account when determining novelty. epi has recently submitted an amicus curiae brief in that case and we may expect a decision within 2024.

During 2023, we have also seen the EU-Commission proposal for a patent package, which contains three elements:

1. A European wide mechanism to facilitate compulsory licensing at occasions of crisis;
2. The introduction of a Unitary Supplementary Protection Certificates /SPC) system for pharmaceuticals and agrochemicals as well as a common granting and challenge procedure for SPCs being in force only in some EU/EEA countries, and
3. A proposal to increase transparency and facilitate dispute resolution in connection with Standard Essential Patents (SEPs).

All three elements include new roles for the EUIPO in Alicante, which so far has very little exposure to patents. epi has commented each of those proposals and is overall critical about the perceived need to install an additional institution within the European Patent landscape that would be totally new to it. We will continue to support this project on its way through the EU legislative process in 2024 and probably in the years to come.

Just a few days ago, the Administrative Council of the European Patent Organisation adopted the biggest reform of the EQE since its existence at its December meeting. The present EQE with pre-examination and parts A, B, C and D will be gradually replaced from 2025 to 2027 into a New EQE consisting of modules F, M1, M2, M3 and M4. Transitional provisions of recognition ensure that candidates who have passed parts in the old-style format do not need to repeat all modules within the new system. The New EQE will on the one hand make the EQE fully compatible with a digital environment but will also focus more on testing the competencies and knowledge of future European Patent Attorneys. Although a lot of work and dedication has been invested by several epi colleagues as well as by EPO to develop the current proposal that was refined during many meetings, i.a. an extraordinary epi Council meeting in September/October, there is now still a lot of work ahead to implement the New EQE and make sure that there will be a smooth transition. Additionally, a second basket of rule changes will be discussed and worked on particularly during 2024 with the aim to modernise the access requirements to the EQE as well as some aspects of the appeal proceedings from EQE-related decisions.

2023 was also a year of elections for epi. Following the epi Council election, a new epi Presidium, with me as President, and a Board were elected at the Spring Council meeting in Malmö. Since then, we have started our journey to find out in targeted interviews with each epi Council delegation on which topics and aspects epi could assist our local membership in the contracting states. We will also use the information gathered to develop a longer-term vision for the epi. Partially based on the work of previous epi Presidiums, epi was welcomed as a member of ANIPA and IP5 Industries this year, which will help to increase epi’s input and support on questions generally affecting the profession in Europe and contribute aside with BusinessEurope to practical initiatives of international harmonisation of procedural patent law such as acceptance of colour drawings in patent applications or simplified acceptance of e-signatures. In addition, epi elected its committees for the first time in an online election process. Many of the newly elected Committees have already or will soon constitute themselves and elect their officers. I am therefore confident that we will continue our journey in 2024 with fresh energy and ideas.

I wish you and your families a relaxing, peaceful and re-energising festive time and a good start into 2024, which will be a year of further new developments in Europe’s patent system.

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