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Article 52(2) of the Convention on the Grant of European Patents: What Did the Framers Intend? A Study of the Travaux Preparatoires


Justine Pila


University of Oxford - Faculty of Law


IIC: International Review of Intellectual Property and Competition Law, Vol. 36, 2005

Abstract:     
In a paper recently published in the IIC, I argued against the prevailing construction of article 52(2) of the Convention on the Grant of European Patents as resolving to a single requirement for technical character. That argument was based in part on a challenge to contemporary assumptions surrounding the historical provenance of the 'technical character' theory of inventions, and article 52(2) itself, that drew heavily on an analysis of the EPC's travaux preparatoires. Hence the article's subtext, that the travaux preparatoires can be of value in contemporary debates regarding European patent law, not only for the insights they offer on substantive matters of patentability, but equally for the insights they offer on regional lawmaking processes themselves.

In the light of that value it is surprising that so little academic attention has been paid to the EPC's travaux preparatoires to date. There is an important series of early IIC articles documenting the progress of each stage in the EPC lawmaking process, but no detailed study of the travaux preparatoires in relation to the central EPC provisions themselves.

The purpose of the current paper is to make a modest start on filling this gap in the literature of European patent law by offering a 'pre-history' of the most contested of those provisions, article 52(2), and its counterpart in the United Kingdom, sub-section 1(2) of the Patents Act 1977. It is hoped in doing so to create a study of interest and use to the range of people engaged in the current national and international debates concerning the reach of the contemporary European patent system, and the most appropriate mechanisms for that system's reform.

Keywords: Patent law, EPC, article 52(2), inventions, history

JEL Classification: K39, K33

Accepted Paper Series


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Date posted: June 5, 2005  

Suggested Citation

Pila, Justine, Article 52(2) of the Convention on the Grant of European Patents: What Did the Framers Intend? A Study of the Travaux Preparatoires. IIC: International Review of Intellectual Property and Competition Law, Vol. 36, 2005. Available at SSRN: http://ssrn.com/abstract=736064

Contact Information

Justine Pila (Contact Author)
University of Oxford - Faculty of Law ( email )
St Cross Building
St Cross Road
Oxford, Oxfordshire OX1 3UL
Great Britain
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