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Report from the 97th Council Meeting held on 27 April 2024 in Sofia (Bulgaria)

M. Nevant (FR)

A high-quality seminar dedicated to the UPC took place on the eve of the Council meeting. Presentations were given by UPC judges on “provisional measures before the UPC” and on a comparison “EPO opposition vs UPC revocation action”.

1/ Meeting opening

President Peter THOMSEN opened the meeting at 8:47 am and welcomed the participants. A test vote was conducted (133 voters were present then) and scrutineers were appointed. Participants were reminded of the policy on photographs and of the policy on social media posting.

2/ Adoption of the agenda

Proposed changes were made to the provisional agenda to include: a discussion on the “Quality of Search and Examination in the EPO” under item 10 (“Developing an epi position on adaptation of the description”); a motion from Mr Christoph SCHOBER(DE) and from the Dutch delegation under item 11 (“EQE – second basket changes”); a motion from Mr Werner FRÖHLING (Deputy Chair of the Disciplinary Committee) under item 14 (“Report of the DC”); a decision on the release of the Executive Director under item 21; a decision to approve the administration of assets for 2023 under item 22; a decision on (i) the language versions of Council minutes and Council agenda, (ii) the official title of EPAs in Montenegro and (iii) a change in the Spanish translation of EPAs official title under item 25 (“Amendments to the By-Laws”); and another motion from the Dutch delegation under item 30 (“Report of Presidium regarding review of Secretariat organization”). It was also proposed to move item 5 (“Adoption of the minutes of the 95th and 96th Council meetings”) after item 14.

The revised agenda was adopted by acclamation.

3/ Confirmation of the list of nominations for elections to committees

Council confirmed the list of nominations for the By-elections for the following Committees: By-Laws Committee, Committee on Biotechnological Inventions, Editorial Committee, EPO Finances Committee, Litigation Committee, Nominations Committee, Professional Conduct Committee and Professional Education Committee (with a last minute addition of a candidate for Norway).

4/ Matters arising from the decisions and actions recorded during the 96th Council meeting and previous Council and Board meetings

The Secretary General, Magdalena AUGUSTYNIAK, referred to the document in the accumulated file.

5/ Report of the President and Vice-Presidents

President THOMSEN referred to his report in the accumulated file, which also included activities of the Vice-Presidents.

6/ Report of the Secretary General

The Secretary General, Magdalena AUGUSTYNIAK referred to her report in the accumulated file. Ms AUGUSTYNIAK thanked Presidium members for their cooperation and the Secretariat for the work done. Ms AUGUSTYNIAK also informed Council that the next Board meeting would not take place in Alicante as initially planned, but would rather be held as an online meeting. Ms AUGUSTYNIAK further informed Council that the epi Artists Exhibition 2024 would start on 27th May with a “get together” online event, and that it will be possible to view the artists’ work online until November this year.

7/ Presentation of the annual report 2023 to be submitted to the members

The Annual Report 2023 was presented by the Chair of the Editorial Committee (yours truly), who thanked Magdalena AUGUSTYNIAK (Secretary General), Ann De CLERCQ (Deputy Secretary General) and Sadia LIEBIG (Secretariat) for their help and support in preparing the report, as well as all the Committee Chairs who provided a summary of the activities of their respective Committees. A comment was made by Mr Cees MULDER (NL) that there was no summary of activities from EPPC.

The 2023 report was adopted with 96% in favour and 4% against.

8/ Motion on time limitation

President THOMSEN presented the following motion to limit the time accorded to speakers pursuant to Article 42.1 By-Laws:

“Any person introducing an item on the agenda as sent with the Accumulated File, including any motion included in a paper in the accumulated file, shall have no time limit. Any person addressing Council on a motion submitted after the issuance of the accumulated file shall be subject to the following time limits: Chairman of the By-Laws Committee – No limitation; Introducer of a motion – 4 minutes Contributor to the further discussion – 2 minutes These limitations would be applied to items 10 to 17, 25 to 27 and 30 to 32 of the agenda”.

The motion was adopted with 87% in favour and 13% against.

9/ Developing an epi position on adaptation of the description and the interpretation of claims. Quality of Search and Examination in the EPO

The Chair of EPPC, Chris MERCER, presented on two upcoming referrals to the Enlarged Board of Appeal, one concerning the adaptation of the description to the claims, the other concerning the interpretation of claims. A number of participants commented on these topics.

The Dutch delegation then raised the question of the quality of examination at the EPO. Various opinions were exchanged, and it was agreed that the topic should be further discussed at the next Council meeting.

10/ EQE - Second basket changes. Motion BOFF. Motion SCHOBER. Motion NL Delegation

As a reminder, following the adoption of the new EQE by the EPOrg Administrative Council, a new joint EPO/epi working group (2nd basket WG) was formed to look into other possible amendments to the REE/IPREE that were not dealt with as part of the “first basket”. epi members of the WG have among other things discussed the issue of revising how to measure the technical qualification requirement to better adapt to the changing landscape of tertiary education which has led to problems in assessing whether a candidate’s technical or scientific qualification meets the requirements in the present IPREE for sitting the EQE.

This topic of “how to measure technical qualification” was the subject of a thorough presentation by Mr Alexandros LIOUMBIS (GR) and Ms Anna VALBORG GUDMUNDSDOTTIR (IS), including an analysis of the results of the survey sent to Council members. On behalf of the epi members of the 2nd basket WG, Mr LIOUMBIS and Ms VALBORG GUDMUNDSDOTTIR presented the following motion:

“Does Council agree that the technical/scientific content for a candidtes’s degree in Rule 11 IPREE is evaluated using ECTS credits as an absolute measurement system?”

Mr Christoph SCHOBER (DE) then presented the following motion:

“Does Council agree that Rule 11(1) IPREE be amended to require candidates to possess a scientific or technical university-level qualification based on at least a Master’s degree?”

Mr Jim BOFF (GB) then presented the following motion:

“Does Council agree that at this Council meeting (C97) no decision be taken, or recommendation made, concerning the absolute level of qualification necessary to enter the European Qualifying Examination?”

A number of speakers exchanged views of the report made on behalf of the 2nd basket WG and the corresponding motion, as well as on the motions by Mr SCHOBER and Mr BOFF.

Council then voted on a procedural motion to proceed in the following order with respect to the motions presented: vote on motion 2nd basket WG; vote on motion BOFF; vote on motion SCHOBER.

The procedural motion was adopted with 69% in favour and 31% against.

Council then voted on the motion 2nd basket WG. The motion was adopted with 96% in favour and 4% against.

Council then voted on the motion BOFF. The motion was adopted with 66% in favour and 34% against. In view of the result, no vote was required on the motion SCHOBER.

The Dutch delegation then raised the issue of the lack of information/material available for preparing EQE module F which will be held for the first time in 2025. Vice-President Tiem REIJNS explained that there were ongoing discussions with the EQE Secretariat, that test F papers were being prepared by epi members, and that test M1 papers should also be available by the end of the year.

Council then voted on the following motion from the Dutch delegation:

“Does Council agree that there is an urgent need for information on several New EQE aspects, in particular its Foundation Paper F and in particular in the form of Notices by the Examination Board and/or the Supervisory Board ( whoever is competent on the specific matter), and to urge the epi members in the EQE bodies to initiate the preparation of such Notices for publication on the EQE website before 15 July 2024?”

The motion was adopted with 93% in favour and 7% against.

11/ Substantive Patent Law Harmonisation

A brief overview of epi’s proposed response to the Group B+ WG questionnaire (user association consultation 2024) was given by the Chair of the Harmonisation Committee, Mr John BROWN.

12/ Report from the Online Communications Committee

The Chair of the Online Communications Committee, Mr John GRAY, gave an update on digital transformation at the EPO and on the contingency upload service, reminded Council members of the systems closing this year, and presented the new functions/features coming in 2024-2025.

13/ Adoption of the minutes of C95 and C96

Council first voted on three motions presented by Mr Francis LEYDER.

Motion LEYDER 1:

“Does Council agree to request a separate vote on the draft minutes of C95 and C96, starting with the adoption of the English minutes?”

The motion was adopted with 80% in favour and 20% against.

Motion LEYDER 2:

“Does Council agree to request that the vote on the minutes of C95 and C96 in French be whether to approve the texts as translations of the minutes in English?”

The motion was adopted with 84% in favour and 16% against.

Motion LEYDER 3:

“Does Council agree to request that the vote on the minutes of C95 and C96 in German be whether to approve the texts as translations of the minutes in English?”

The motion was adopted with 86% in favour and 14% against.

Council then voted on the minutes of the 95th Council Meeting in English with the proposed amendments.

The minutes as amended were adopted with 93% in favour and 7% against.

Council finally voted on the minutes of the 96th Council Meeting in English with the proposed amendments.

The minutes as amended were adopted with 98% in favour and 2% against.

It was further agreed that the translations of the minutes of C95 and C96 would be posted on the Forum for adoption by on-line voting.

14/ Report from Disciplinary Committee – Motion FRÖHLING

The Deputy Chair of the Disciplinary Committee, Mr Werner FRÖHLING, reported on the structure and activities of the DC, and presented statistics on appeals. Mr FRÖHLING also mentioned that there are currently 3 working groups within the DC respectively dealing with the following topics:

  • creation of a database (for DC members) with decisions of Chambers in anonymized form;
  • drafting of templates and guidelines to ensure consistency of decisions by Chambers;
  • proposals for amendments to the current Additional Rules of Procedure of the DC.

Mr FRÖHLING also presented two motions on the composition of the Working Group appointed at C96 with the task of studying the present disciplinary system and considering possible proposals to improve it.

Both motions were rejected (with respectively 65% and 66% votes against).

15/ Update on the UPC – Facilitating access to litigation advice for micro-entities

The Chair of the Litigation Committee, Mr Kim FINNILÄ, provided statistics on the number of cases before the First Instance Court and for the Court of Appeal of the UPC. Mr FINNILÄ reminded Council that epi has observer status at the UPC Administrative Committee since July 22 and as such epi delegates attend meetings of that Committee. Mr FINNILÄ also noted that regular meetings with the UPC Registrar and IT Team are taking place (and that the Online Communication Committee has provided and is providing invaluable support), and mentioned the start of a new project called “UPC Business Intelligence project” (for the Court and users). Mr FINNILÄ further noted that epi did file a position paper on unitary Supplementary Protection Certificates.

Mr FINNILÄ then gave a presentation on measures contemplated to facilitate the access to litigation for micro-entities. Such measures are mentioned in the EPO Strategic Plan 2028, and two meetings with the EPO have already taken place. Support measures before the UPC exist, such as reduced fees for small and micro-entities (R370(8) RoP), discretion of UPC to limit recoverable costs if threat of economic existence of losing party (R372(10)(11) RoP), legal aid (R375-382 RoP). According to the measures contemplated:

  • professionals eligible to provide legal support would be members of EPLAW or epi authorized to practice before the UPC or a competent court or authority of an EPC contracting state;
  • the EPO would provide financial support, with a cap of 4,000 € per case.

The current status of the project raises questions which will have to be addressed.

16/ Report of the Biotech Committee including an update on EU position on NGT plants

The Chair of the Biotech Committee, Mr Simon WRIGHT, briefly reported on the proposed EU legislation to exclude plants modified using new genomic techniques (NGTs) from patentability, and on the position paper filed with the EU Commission to which epi contributed. Mr WRIGHT also noted that a meeting with DG1 took place earlier this year.

17/ Report of the Treasurer - Presentation of the annual accounts 2023 to be submitted to members

The Treasurer, Zsolt SZENTPETERI, presented the results of the 2023 accounting year. The overall financial result for 2023 is - 397 kEUR which is less than the initially planned deficit of -526 kEUR. The Treasurer noted that revenues were lower than expected (- 557 kEUR), mainly due to decreased income in the educational sector and lower activity in EPA CSP and EQE programs; the expenses were also lower than expected (- 687 kEUR), also mainly due to lower activity in the educational sector and also due to prudent management by several Committees.

The Treasurer indicated that 693 new members registered on the list in 2023.

The Treasurer also gave an overview of epi’s investment strategy, as well as a snapshot of the financial situation at the end of March 2024 (no significant deviation compared to budget is noted).

18/ Report of the Auditors for the accounting year 2023

The Auditors, Mr Hansjörg KLEY and Mr Alexander HEDENETZ, reported that no irregularities were found for the accounting year 2023, and that the bookkeeping complies with the rules (Handelsgesetzbuch, HGB).

The auditors also noted that a project for a distinction between «flexitime» and «overtime at the request of management» was considered but not started in 2023. The auditors strongly recommended that guidelines for the handling of «flexitime» and of «overtime» should be drafted and implemented as quickly as possible.

19/ Report of the epi-Finances Committee

The Chair of the epi-Finances Committee, Mr Claude QUINTELIER, reported that the Committee met with the Treasurer, the Deputy Treasurer, the Auditors and their substitutes, and the Head of Finance to review the financial situation of the Institute. Mr QUINTELIER noted that the Committee was “happy” that the deficit for 2023 was “not as bad as planned”. The Committee also supported a proposal made by the Auditors to review the Julius Bär mandate.

20/ Decision on Release of the Treasurer and the Executive Director pursuant to Art. 21.3 By-Laws

Council released the Treasurer and the Executive Director with 99% in favour.

21/ Approval of the accounts and the administration of assets for 2023, to be submitted to members

Council approved the accounts and the administration of assets for 2023 with 99% in favour.

22/ Decision on Release of members of the Board, and in particular the Treasurer, from liability

Council released members of the Board, in particular the Treasurer, from liability with 99% in favour.

23/ Double signature for bank accounts/securities accounts: amendment of Article 16.2 By-Laws

The Auditors proposed an amendment of Article 16.2 By-Laws so that a double signature system is put in place for certain bank operations.

Council agreed, with 96% in favour, that a double signature requirement is mandatory for bank accounts and securities accounts (including asset management mandates) hold by epi, but decided to postpone the implementation of this decision until the next ordinary autumn Council meeting.

24/ Amendments to the By-Laws - Language versions of Council minutes and Council agenda - Change of Council decision on official titles of European patent attorneys in national languages: Montenegrin title – motion from the Spanish delegation

a) Four proposals were presented to amend Articles 27.1, 62.1 and 63 By-Laws, whereby the agenda and the minutes of Council meetings (including secret sessions) would be drafted in at least one of the official languages, or in English only. Some of the proposals included the possibility for interventions made in French or German to be reported as such in the minutes.

Council voted for proposal 4 with 84% in favour. According to this proposal, Article 62.1 By-Laws is amended as follows:

“The draft minutes shall be presented in English. This does not preclude interventions made during any Council meeting in another official language from being included in the draft minutes of this meeting in that other official language…….The minutes shall be adopted by Council in the language in which the draft minutes are presented”;
and Article 27.1 By-Laws now mentions that “…the list setting out the decisions, as per Article 15.2, shall be sent in all three official languages to Council members…..“.

b) Council approved, with 98% in favour, the addition of the following Montenegrin title to the Recommendation concerning professional title:
“Evropski Patentni Zastupnik”.

c) Council approved, with 97% in favour, to substitute the following Spanish title in the Recommendation concerning professional title:
“Agente de Patentes Europeas”.

25/ Diversity & Inclusion Working Group

Council agreed, by acclamation, that the Diversity and Inclusion Working Group continue their work until at least the 2024 ordinary Autumn Council meeting.

26/ Election of Committee members

By-elections took place due to vacancies in a number of Committees. Council elected the following members:

  • By-Laws Committee (substitute member with English mother tongue): Alicia Claire INSTONE (GB).
  • Committee on Biotechnological Inventions (full members): Elena COMOGLIO (IT); Heiko SENDROWSKI (MC).
  • Editorial Committee (full member): Ricardo Jorge DINIS ABRANTES (PT).
  • EPO Finances Committee (substitute members): Wolfgang WILHELM (DE); Thomas Ottmar KÖRNER (CH).
  • Litigation Committee (full member): Utkan Bahri BAKIRCI (SI).
  • Litigation Committee (substitute members): Michael Jon NIELSEN (FI); Maja VANHALLE (BE); Ausra PAKENIENE (LT); Cristina GEORGESCU (RO); Howard Graham READ (NO).
  • Nomination Committee (full members): Michael LIEBETANZ (CH); Selda ARKAN (TR).
  • Professional Conduct Committee (full members): Albina DLACIC (HR); Miklos SOVARI (HU).
  • Professional Conduct Committee (substitute members): Cristina GEORGESCU (RO); Christian MOHR (DE); Jorge Ricardo Dinis ABRANTES (PT); Per Gustav BOIJE AF GENNÄS (FI).
  • Professional Education Committee (full members): Katja REITAN (NO); NINA FERARA (LV); Paolo RAMBELLI (MT); Lotte Vinggaard ANDREASEN (DK).
  • Professional Education Committee (substitute members): Anniina VATTULAINEN ERKKILÄ (FI); Howard Graham READ (NO).

NB: the composition of the Committees is available on our website (https://patentepi.org/en/epi-bodies/epi-committees/).

27/ Closing of meeting

Secretary General Magdalena AUGUSTYNIAK read the list of decisions and actions taken during the meeting, and President Peter THOMSEN then officially closed the meeting at 7:50 pm.

97th Council Meeting in Sofia

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