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European Patent Office

This article is about the organisation. For EPO decisions, see EPO case law.

The European Patent Office (EPO) is the primary organ of the European Patent Organisation (EPOrg). These were created by the European Patent Convention (EPC), which has 38 signatory countries.

The signatory countries include the countries of the European Union, but the EPO is not an EU institution. The EPO does not answer to the EU, and the EU has no control over the EPO.

The EPO approves thousands of software patents per year, but denies doing so.[1]

Granting European patents

Main article: Granting procedures for European patents and unitary patents

The EPO grants "European patents". These then get passed on to the member states designated by the applicant, to be validated by the national patent office. Member states may place requirements such as translation into an official language. If the criteria of the member state are not met within three months, the patent is not validated by that member state. (The patent is actually considered valid as soon as granted by the EPO, but if not validated within three months, it is considered retroactively to never have been valid for that member state.)

Democratic problems

The EPO is a strange organisation because its membership is very similar to the members of the EU, but it was formed before the EU and is not an EU institution. This means the EU has no control over the EPO. This creates a dangerous problem because the EPO is master of interpreting patent law. They can change the meaning of patent law without having to go through the usual democratic channels for changing legislation. Further, the EPO refuses to accept suggestions in any languages other than English, German or French,[2] so people of other languages have reduced capacity to participate in the consultations of the EPO. This also favours large enterprises who can afford translators over SMEs and individuals.

The separation of powers in European patent governance has often been questioned.[3] As patent attorney Rob J. Aerts says "under the intergovernmental EPC system it is difficult to speak of a functional separation of powers". [4]

Judicial review of EPO decisions

There is debate over whether the EPO's Appeal Boards and Enlarged Board of Appeal can provide judicial review for the EPO's decisions.[5]

Art 52 consultation, 2008-2009

(See EPO EBoA referral G3-08)

In October 2008, the EPO's president referred a set of questions regarding software patents to the EPO's Enlarged Board of Appeal. A public consultation was held in early 2009 and there were almost one hundred briefs submitted to EPO EBoA G3-08. The decision of the EBoA, published in May 2010, was that the EBoA cannot answer this type of question. All questions were judged "inadmissible".

A troubled institution

In September 2008, the staff of the EPO went on strike to complain about the decline in patent quality.[6][7] The Staff Union of the EPO, SUEPO, have a number of criticisms on their website.[8] They also published results of an informal survey showing that only 6% of patent examiners had confidence in the President of the EPO, Alison Brimelow, and her team of Vice-Presidents.[1][2]

In May 2009, the EPO President Alison Brimelow announced she would be stepping down after less than two years in the job.[9][10]

Also in May 2009, the EPO office in Munich was surrounded by pigs and tractors in a protest against patents on biotech.[11] (Note: This doesn't seem software related, but Richard Stallman and Hartmut Pilch both spoke there, so there must be some software link.)

Key people

The EPO president, selected in March 2010, is Benoît Battistelli.[12] Mr. Battistelli served as Deputy Chairman of the EPO's Administrative Council since 2006[13] Previous presidents were Alison Brimelow and Alain Pompidou.

David Sant also held a prominent position during the EU software patents directive.

Related pages on ESP Wiki

External links

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Wikipedia pages


  1. the EPO does not grant "software patents": computer programs claimed as such, algorithms or computer-implemented business methods that make no technical contribution are not considered patentable inventions
  3. Bakels Reinier B., Macht zonder tegenmacht in het octrooirecht (Power without countervailing power in patent law), Nederlands Juristenblad, No. 36, 2021.
  5. See pages 4 and 5 of "Spain's Action against the EU Patent Package: Arguments and Counter-Arguments in Case C-146/13", Prof. Winfried Tilmann, Heidelberg University, Düsseldorf.
  8. "Quality vs Quantity: situation at EPO".