June 27, 2017
epi was represented at a recent meeting on Substantive Patent Law Harmonisation held at the EPO’s Isar Building on 20th June, 2017.
epi was represented by its President, Francis Leyder, and its Chair of EPPC, Chris Mercer. A lot of work has been carried out recently towards the goal of a global harmonisation of some aspects of substantive patent law, much of which has concentrated on the possible introduction of a grace period. There have been voices completely against a grace period, others who would be able to accept a grace period but with significant safeguards and others who are totally in favour of a US-style grace period. epi’s position has consistently been that epi is against a grace period but would be able to accept a grace period, provided that it is truly a safety net and there are safeguards for prior users.
Attempts to agree harmonisation via WIPO have been frustrated and so work on the subject has been taken up by the B+ Group of nations (mainly developed countries) with the assistance of the Industry Trilateral (a group made up of IP owners in industry from the USA, Europe and Japan). The work went through the Tegernsee process and then through various meetings of the B+ countries and the Industry Trilateral. The meeting at the EPO was held so that interested parties could discuss a paper and three annexes produced by the Industry Trilateral. This paper addressed in general the principles which need to be addressed as well as possible outcomes, although many of the possible outcomes were still not agreed in the paper. The main subjects covered were; prior art (can a universally-accepted definition of what is and is not prior art be agreed?); conflicting applications (to us Article 54(3) EPC prior art – should we follow the EPO regime or add in obviousness as well? how should we deal with PCT applications?); the grace period (what disclosures should be graced? when should it start? how long should it be? is a declaration necessary?); prior user rights (should there be any? if so, what should be the territorial extent? how long should they last? should they be replaced by a Defence of Intervening User?); and mandatory publication 18 months after the publication of the graced disclosure. This last proposal received the most support from the meeting.
The discussions at the meeting were very lively and epi made a number of interventions. As the Chair said at the end, Harmonisation had always been looked at as a glass half empty. However, now it is being looked at as a glass half full and getting fuller. That does not mean that there will be any immediate change in law but this may be getting closer.