From our Munich Correspondent.
Thirty years ago, a group of European states set-up the European Patent Organisation (EPO) as a seperate international organisation. "Separate" meant from the European Economic Community (EEC) - see www.efta.int.
Thirty years ago, there were many European states who were members of EFTA (the European Free Trade Area). The EPO - the European Patent Office - was designed to serve both EFTA and EEC members.
Thirty years ago, it was believed that the EEC did not have the legislative competence to set-up its own patent system through a Council Regulation.
But in 1994, the Council Regulation 40/94 created the Community Trade Mark and proved that the Community has the competence to set-up a patent system.
However, the fact that the EPO is a separate organisation has brought it the power of determining its own destiny, independent of what the political authorities of the European Union want the patent system to do and be. What we see within the EPO is a continuous struggle between those who want to steer the EPO towards the EU (and public accountability), and those who want to keep the EPO seperate, an independent entity that can determine its own future.
The existence of an EPO project to create a non-Community system of patent courts (the European Patent Litigation System) is proof - if any were needed - that the "independent EPO" tendency exists within the EPO.
Pressures from internal forces, and more importantly, external forces, are forcing the EPO to steer back towards the EU and a minimum level of public accountability. Internally, the dependency on ever more patents is stretching and breaking the examination system. Externally, the continuous pressure from the Commission and the FFII forces the EPO management to think twice before taking a decision.
For most people in the EPO, Munich is the centre of their universe, and the FFII is like Galileo, telling them that Munich rotates around Brussels, and not vice-versa.
Yet the centre of the EPO universe must become Brussels. Even though the EPO is currently a separate intergovernmental organisation with its headquarters in Munich, the policy regarding the patent system should be made in Brussels where the public is in some position to exercise control through the European Parliament. An EPO that tries to operate outside of public scrutiny cannot survive indefinitely: its internal stresses will get worse, political and public support will fall away, and eventually the calls for the abolition of the European Patent Organisation will be coming not just from the FFII but from mainstream political parties.
The future of the EPO is, of course, as the EU's patent agency.
As long as there is no official control by the EU on the EPO, and we need the personal determination of certain people in the Commission like Jens Gaster to remain on top of the issue of the Community Patent, it is important to maintain a high level of public scrutiny: if an organisation like FFII did not exist, it would have to be created.