The Holy Roman Empire (Latin: Sacrum Romanum Imperium; German: Heiliges Römisches Reich, later: Heiliges Römisches Reich deutscher Nation) was one of the largest, most successful and longest-lasting political entities in Europe. Founded by the German Emperor Otto the Great in 962, who wanted to continue and revive the empire of Charlemagne, who in turn considered himself as the right successor of the Roman Empire (translatio imperii), it continued for more than eight centuries until its dissolution in 1806 during the Napoleonic Wars. At the high-point of its territorial scope around 1200, it covered the whole or at least considerable areas of the contracting states AT, BE, CH, CZ, DE, FR, IT, LI, LU, NL, PL and SI.

Holy Roman Empire 1180

Wikipedia educates us that

From the accession of Otto I in 962 until the twelfth century, the Empire was the most powerful monarchy in Europe. Andrew Holt characterizes it as “perhaps the most powerful European state of the Middle Age”. Centralized control dwindled around the 1250s.

With that history of success and true European ambition, it is nothing but a fair proposition that the Holy Roman Empire is the proper predecessor of the modern European Patent Organisation. Unlike the EU, the Holy Roman Empire covered states like Switzerland and Liechtenstein, and likewise unlike the EU, its constitutional order resembles one of a Wahlmonarchie (elective monarchy) rather than the one of a federation of souvereign states with a considerable number of democratic elements (e.g. a democratically elected European Parliament). The main difference between the medieval Holy Roman Empire and the European Patent Organisation is that the former used to be a mixture of monarchy and aristocracy whereas the EPO rather resembles a mixture of monarchy and bureaucracy. But the key features are the same: In the Holy Roman Empire, the sovereign (the Kaiser / Emperor) was elected by the Kurfürsten (prince-electors), whereas today the sovereign (the President) is elected by the Administrative Council. Both can be fairly represented by the following picture:

Adminstrative Council 1495

As the EPO’s sovereign-electors meet again this week, most likely to confirm and praise the President they elected previously, let us have a closer look into the workings of a historic election in the Holy Roman Empire.

Traditionally, the Emperor was elected by and among the prince-electors, and equally traditionally, the election came at a huge price. The prince electors demanded imperial privileges, attractive positions at Court, and, above all, money. One of the most famous stories in this regard is about the Habsburg King Maximilian I, who only became elected as German Emperor because he was lavishly funded by Jakob Fugger “the Rich”, a major German merchant, mining entrepreneur, and banker from Augsburg. Fugger in turn then received further imperial privileges, e.g. he had an almost monopolistic hold on the European copper market. Having financed the rise of Maximilian I, Jakob Fugger made considerable contributions to secure the election of the Spanish king Charles I to become Holy Roman Emperor Charles V. He also funded the marriages which later resulted in the House of Habsburg gaining the kingdoms of Bohemia and Hungary. Wikipedia reports Fugger’s net worth at the time of his death as approximately 2 million guilders, which allowing for inflation is the staggering amount of approximately US$ 328 billion (in 2021 dollars), or equivalent to 2% of the GDP of Europe in 1525. So it was not overly difficult for him to be generous with “his” Emperor and burn the Emperor’s IOU’s in his chimney, when Maximilian humbly asked for a cut of his debts.

Maximilian, in turn, was constantly in debts, because he needed money not only for diplomacy, but also for his lavish lifestyle which was typical of a Renaissance leader. He explicitly described in one of his books (Der Weisskunig) his pleasure in a “köstlich hochzeitlich mal mit manicherley trank aus teutschen, welschen, kriechischen, hispanischen und heidnischen landen, auch mit vil seltsamer wunderlicher speiß”, i.e. a big party with lots of booze from all over Europe that the Pope arranged for him on the occasion of one of his weddings. Yet another reason of his chronic dire straits with finances were the many wars that he started, particularly in the East. His soldiers seemed less happy with this feature of his. There is even one report of them going on strike when Maximilian wanted to engage them in a winter campaign in Hungary. His foot troops were exhausted by the preceding campaign and did not want to get exposed to coldness, snow and yet more fighting; hence they demanded a doubling of their salary, a demand that Maximilian could neither understand (he loved fighting and did not mind snow) nor fulfill. Nonetheless, it appears that he still enjoyed more trust by his soldiers than the present EPO President by his examiners, if this survey is to be believed.

Maximilian Antonio I, Emperor of Germany, by Albrecht Dürer, via wikimedia commons

So Maximilian I became German Emperor in 1508. He then continued his policy of appointing befriended noblemen into new positions, e.g. by appointing the family Radziwill as dukes, arranged multiple weddings of his progeny with the successors of the thrones in Bohemia and Hungary to enlarge Austria’s territory, and so on and so forth. As early as from 1488 through his reign as sole ruler, Maximilian had practiced a policy of brokerage, acting as the impartial judge between options suggested by the prince elects. In particular, a new organ was then introduced, the Reichskammergericht, i.e. a court that was to be largely independent from the Emperor. Alas, such a court is dearly missed in today’s Eponia, which is more akin to the medieval Holy Roman Empire before 1495. But why change such a successful system?

When new sovereigns entered into power, they of course brought their Hofstaat (Court) with them or appointed good friends into major positions such as the Truchsess (Steward), the Marschall (Marshal), the Schenk (Cupbearer) and the Kämmerer (Chamberlain). Over time, these honorary positions were increasingly reserved to the prince elects, at times even on a hereditary basis. Today, people in equivalent positions bear more sober names such as VP 1, 2, 4 and 5, but it still happens that they have previously been among the prince-elects. One may question whether a system that is more built on competence for the position, i.e. a meritocracy, might better serve the purposes of the European Patent Organization, but let us not get such modernistic thoughts in the way of our historic contemplations. The Holy Roman Empire thrived with such a system for more than 800 years.

One legal problem about the Holy Roman Empire plagued the lawyers, though. Was the Empire a monarchy or an aristocracy? The empire could never be clearly assigned to one of the two categories, since the power to govern the empire was neither in the hands of the emperor alone, nor in the hands of the electors alone, nor in the hands of the entirety of an association of persons such as the Reichstag. Rather, the empire combined features of both forms of government. Thus, in the 17th century, Samuel Pufendorf concluded in his work De statu imperii on the state of the empire, that the empire was sui generis (of its own kind) “ein irregulärer und einem Monstrum ähnlicher Körper” (irregulare aliquod corpus et monstro simile / an irregular body resembling a monstrosity), which, according to wikipedia, Karl Otmar von Aretin described as “the most frequently cited sentence about the imperial constitution from 1648 onward”.

I better stop here. History contains many interesting lessons for us, and sometimes I am afraid that we have not progressed very much since the middle ages. Remember that Maximilian I was also the Emperor under whom Martin Luther and the reformation came up (starting in 1517). Reforms to the European Patent Organization are, at least in my humble opinion, likewise needed. There should be a strict separation between the organ that elects and is supposed to control the President, and the administration of the European Patent Office. In particular, it should not be allowable that members of the Administrative Council later become senior members of the EPO. EPO management should be elected based on merits, not political or financial favours. There should be a strong embedding of the European Patent Organisation in a constitutional order that guarantees fundamental rights to its employees. And there should be an independent court watching over the Administrative Council and the Office Management and making sure that both comply with this constitutional order. I know that some people will say this is a dream with no chance of being realised any time soon. But I stay with Luther, who wrote

Ich kann nicht anderst/ hie stehe ich/ Got helff mir/ Amen.


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Kluwer IP Law
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19 comments

  1. a very interesting point of view and an enlightening presentation of the EPO! Putting aside not electing the management or not controlling the controller (the council), would you mind telling to a much less experienced lawyer like me what you disapprove and dislike most of the daily handling of patent applications by the EPO, what attitudes or rules you consider inappropriate, wrong or unfair when you are seeking a patent release for one of your clients? As you see a high distortion and damage induced by the EPO to the patent system in Europe, I would like to understand how this practically results in incorrect or possibly unlawful decisions daily taken by EPO staff when processing instances from applicants. I would appreciate this very much in order for me and others, to better prepare a patent request before the EPO and what response to expect. Grateful for any insight from you!

  2. Thanks Thorsten for once more an enlightening article.
    In the Middle Ages such a behaviour might have been tolerable, although I am not sure of it, but in this day and age such an attitude is bordering on criminal.

    The head of an office put in charge of restoring social peace and who is insulting his own staff should be dismissed at once, even if he should have accomplished positive things, which for the person concerned is certainly not the case.

    The level of cross border “fertilisation” between members of the AC and later high ranking “managers” has reached an absurd level. Not only the appointment of the Benoît 1th, VP5, but also some PD in DG5 are prime examples of this kind of collusion.

    No wonder the latter claimed in the OP of G1/21 that the EPC can be amended by secondary legislation. Even if it would be true, certainly to the point that the net result is trodding on the EPC and actually changing its spirit and scope.

    It should be made clear, but by whom, that immunity does not mean impunity!
    As it is said in German: die Stecken alle unter der gleichen Decke! Or in French: passe moi la rhubarbe, je te passe le séné!

    That the representative organs of the users, to start with epi, do not utter any concern is disturbing to say the least! Are those people not realising that they are sawing the branch on which they are sitting?

  3. Great blog entry, a very pleasant read.

    As formulated by Gianbattista Vico: history is made of cycles and counter cycles of growth and decay. Events and situations cyclically repeat, even centuries apart. The EPO is the HRE of the present cycle, only less Holy, less Roman, and possibly more barbaric.

  4. Attentive, Thorsten, I’m going to be provocative again.

    Attentive, lament that “the users” don’t kick up more of a fuss about the demise of the Rule of Law. But just as the AC members are seduced by money, so too are the heaviest users of the EPO. Their servants, the patent attorney profession, know which side their bread is buttered, and the profession as such is never going to bite the hand that feeds it.

    The advent of the UPC sets up the lobbyists for corporate interests to explain to the politicians that the EPO is just another administative organisation that hands out certificates whose only use is to enable them to haggle with each other over incremental degrees of their freedom to use innovations (and in the last resort settle their differences in court). In time, an EPO AI will perform all the admin functions involved in issuing such certificates. He who pays the EPO piper calls the tune. The corporation which files a patent application at the EPO will decide for itself how much “quality” it wants in its granted patent.

    I mean, it is not as if the outlaw EPO can deprive any human being of their liberty, is it? So, shoulder shrugs all round, in Brussels and Berlin. For them, it’s just too difficult and tiring, to resist the power of the lobbyists. These days, as the sayings go, it’s every man for himself and might is always right. Worse, as Margaret Thatcher opined “There is no such thing as society”.

    The EPO had a good run but now, thanks to new technology and erosion of respect for the Rule of Law, its best days are (inevitably) behind it. How can we convince enough of the voters that society exists and that, for society, the ever-shrinking Rule of Law is precious and, once lost, will never be regained. I have no idea. Do you?

    And Thorsten, you mention above a “court” but I wonder, did that amount in any meaningful way to a “Rule of Law”? I’m sceptical.

    1. Dear Max Drei,

      I am not lamenting, I am stating a fact.

      When the BA have been showed to Haar by pure revenge of the head of the EPO at the time, we did not hear a squeak from the profession. The BA would have deserved some support.

      The same at the moment with the new proposals on secondment of staff of national offices to the EPO and secondment of EPO staff to national offices, international organisations and even private enterprises.

      What is the legal basis for such moves? Is by any means the protocol on centralisation respected? Does the PPI of the EPO apply to EPO staff seconded outside of the EPO?

      I agree on one aspect that is the growing influence of lobbyists. Barely 20% of applications/patents stem from SMEs and the like for all EPC contracting states. When on top barely 30% of patents belong to countries having their residence in UPCA contracting states, it becomes abundantly clear that the European patent system is not here for European industry and certainly not for European SMEs!

      Lobbyists have done a good job, See the explanatory notes for the MPs before the second ratification of the UPCA.

      I might look antiquated to believe in the Rule of Law, but if we do not believe in it, we end up in the jungle. This is perspective I have difficulties to accept. Also for my children and grandchildren.

      I have no idea, but to repeat and repeat the stance and fight against lobbyists of all kind.

  5. Thorsten: as usual, an excellent piece. There are interesting parallels between Eponia and the Holy Roman Empire. The main difference is that Eponia is still standing despite having already been overrun by a Napoleon figure.

    The news today will hardly bring your dream any closer to realisation:
    https://www.epo.org/news-events/news/2022/20220629a.html

    It seems that the “gifts” placed at the President’s disposal by the “Mobility Package” (CA 32/22) were simply too tempting for the AC to resist. Thus, whilst it seems that the EPO and the AC have heard about things such as the rule of law, principles of good governance, avoidance of conflicts of interest and the independence of the judiciary, these are not really matters that are capable of attracting (let alone retaining) their attention. I mean, who ever got rich from bothering with such things?

    1. What is to be noted is not only the cupidity of the contracting states of the EPC. For those having little renewal fees, it is too tempting to be under influence of the cooperation budget. This is the means by which the tail is wagging the dog. The cooperation budget always had this hidden purpose, but with the last two tenants of the 10th floor they have had the system evolving to quasi perfection.

      I would allow myself to add the cupidity of the members of the AC as such as they get good daily allowances and perks they could not envisage at national level.

      It is scandalous, but “things such as the rule of law, principles of good governance, avoidance of conflicts of interest and the independence of the judiciary,” They are indeed “not really matters that are capable of attracting (let alone retaining) their attention”.

      It might make me sad, but as long as I have energy, I will fight against this rough way of thinking.

  6. “Reforms to the European Patent Organization are, at least in my humble opinion, likewise needed.”

    The Member States of the EU should leave and make their own EU institution, under the sole and only responsability of the European Parliament.

    Council should be dissolved, as Montesquieu would not have tolerated the executive becoming legislator, which allowed advisors of National Patent Offices (who profit from EPO renewal fees) to capture their Ministries of Economy, sometimes sitting next to them in the Council meetings (on EPLA notably).

    1. You seem to forget that it is due to not successful negotiations for the Community patent (4 drafts) and the PCT coming, that something had to happen.
      The decision was taken to split the procedure between the obtention of the title and the use of the title.
      By doing so, some non-EU country could join the EPC. Switzerland was with it right from the beginning. Sweden and Austria were not in the EU at the time!

      The Luxembourg conference on the actual community paten never came to a result.
      The UPC is a mere avatar of the Luxembourg conference.

      Coming up now and suggesting to dismantle the EPO and create a purely EU patent is way to late and has no chance to be materialised.

      Rule of Law is certainly very important but it means that there is will to do so.
      It does not occur at the EPO as the controlling body has failed to do his job.
      It does not occur at the UPC either when you see what is intended to be done with Art 7(2) UPCA

  7. You suggest an independent court watching over the Administrative Council and the Office Management and making sure that both comply with this constitutional order.
    Couldn’t be this one of the functions of the EPO’s Ombuds Office?

    1. The Ombud’s office is no more than a gadget to look modern and open to new ideas.
      It is a body one can complain to, but the whole system is under the hierarchical control of the head of the EPO.
      It is even less Independent from the head of the EPO than the BA. The BA look independent on paper, not in reality. That the chair of the BA and the head of the EPO have signed a MoU about the return of the BA to Munich is at best farcical and just for the show!

  8. It could have been an idea, perhaps surely a stupid one or call it a dream, that Brussels would at some point whistled the end of the game, since among EPO members states the majority are EU members.

    For unclear reasons it decided not to do anything not even when Battistelli put the house on fire during 8 years.

    Now the current EPO president seems often to misbehave, because he can. When he was in Alicante he did behave because under the scrutiny of Brussels, he had to.

    The EPO would not add a burden onto Brussels’ shoulders since it run yearly surplus. On the contrary this substantial surplus could help contribute to Brussels’ budget.

    So someone tells me why is it that Brussels turn a blind eye onto such an important IO on its territory ?

    1. Asking why Brussels turns a blind eye is the wrong question. You should instead be asking what benefit it is to Brussels (or to the relevant individuals within Brussels) to interfere with the status quo. You should know by now that they can only be persuaded to take action if they are convinced that there is something in it for them.

      Based upon Brussels’ persistent inaction over the years, it is clear that upholding important principles, such as European values and the rule of law, is not motivation enough. Something more is required. I am just stumped as to what that could possibly be – as it is clearly far more “profitable” (for certain people and organisations) to allow things to continue as they are than to be too fussy about things such as laws and principles.

      1. Brussels might be interested in some of the more blatant democratic and human rights failures of the organisation when the UPC will enter into force. I doubt that dealing (as in having a contract where money is exchanged) with an entity that does not respect certain basic human rights and democratic principles is even allowed under EU law.

  9. @ Tell me why
    The fact is that the EPC has been set up to be the independent of the EU and that it has non-EU contracting states renders your solution neither acceptable nor practicable.
    Brussels has no choice but to “turn a blind eye to such an important IO on its territory”!

  10. From medieval times:

    http://wiki.hintjens.com/wiki:patent

    “Patent (n.) A medieval economic tool by which politicians attempt to stimulate trade and wealth by banning innovation and competition in crucial areas of technology.

    It is easy, but incorrect, to confuse patents with other remnants of medieval thinking such as bloodletting, witch burning, and the use of garlic to ward off infectious diseases. Patents in fact have two main functions. First, they protect inefficient and uncompetitive businesses from the ravages of the free market; second they provide an elegant model for tax avoidance, since royalties on patents are exempt of tax, or very lowly taxed, in most countries.”

  11. @zoobab,

    We all know your anti patent attitude, and especially for patents on software, but it does not qualify you in coming up with such sweeping statements.

    There are certainly some aspects which are problematic, but abusive generalization does not help either.

  12. @zoobab
    Your definition simply misses the public policy objective of the patent system. The patent system does foster innovation and competition by efficiently spreading technical knowledge and information. In addition, technology is available on espacenet to get instant full-text translations from many languages.
    Of course the patent system can be misused, and it is by some players.
    But do not throw out the baby with the bathwater.

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