Governing the patent system in Europe: the EPO's supranational autonomy and its need for a regulatory perspective

Abstract

The European Patent Office (EPO), the executive branch of the intergovernmental European Patent Organisation (EPOrg), enjoys considerable administrative autonomy. Its tacit policy-making practices have important effects on European patent integration. Considering agencification and the relationship between autonomy and control, and then epistemic communities and their role in policy-making, this paper explores the supranational autonomy of the EPO, and analyses the core mechanisms for the adjustment of substantive patent law to new technological fields. The analysis assesses how the biotechnology patent directive (98/44/EC) was transposed from the EU to the EPOrg system, and how synchronization between the EU and the EPO has occurred. After identifying various deficits in the democratic legitimacy and the accountability of the EPO system, some effects of this transposition on formal and substantive legitimacy issues are discussed. Finally, several normative and practical suggestions for a more comprehensive and accountable co-evolution of the European patent system are made. Copyright , Beech Tree Publishing.