The European Patent Office (EPO) makes regular updates to its Guidelines for Examination to account for recent developments in case law and where the EPO considers further clarification is needed. The most recent revision of the English-language Guidelines (which came into force on 1 March 2021) also introduced gender-neutral language.
Gender-neutral language avoids words which suggest a bias towards a particular gender, such as gender-specific job titles (neutral chair or chairperson instead of gendered chairman or chairwoman) or gendered pronouns (neutral they instead of gendered he or she). The goal of gender-neutral language is to avoid making assumptions, or creating assumptions in the minds of readers, about any person’s gender. Gendered language, in contrast, can reinforce societal gender stereotypes and disregards those identifying as non-binary.
The EPO has revised the wording used throughout much of the Guidelines to replace references to the applicant or the proprietor with the plural applicants and proprietors, so that he and his may be replaced with they and their. The following explicit statement has also been included:
“Any references to persons made in the Guidelines are to be understood as being gender-neutral.”
HLK welcomes these changes to the Guidelines. Like many other firms, we revised our standard letters several years ago to remove gendered salutations such as “Dear Sirs”. Dive In, our internal Diversity & Inclusivity group, is also currently reviewing HLK’s policy documents to ensure that the language used is unbiased.
Unfortunately, however, the EPO does not appear to have caught all uses of gendered language in the Guidelines. For example, the words “deficiencies specified by the patent proprietor himself” still appear in section D-IV, 5.5.
In addition, the EPO has not introduced gender-neutral language to the French- or German-language versions of the Guidelines. For example, while the German-language Guidelines do include an equivalent statement that any references to persons are to be understood as being gender-neutral, they also still contain explicitly gendered terms such as der Anmelder (the applicant), der Patentinhaber (the proprietor) and der Fachmann (the skilled person). Section G-VII, 3 even goes as far as defining the Fachmann as einen erfahrenen Mann der Praxis (a skilled man of practical experience). While German is a grammatically-gendered language (e.g. all nouns in German have an intrinsic grammatical gender), there are several ways to avoid the so-called generisches Maskulinum (generic masculine) in which the grammatically masculine term is used to refer to people of all genders. Indeed, many universities and regional authorities recommend or prescribe use of gender-neutral language in German. German and Austrian law also recognises a third gender option divers, in addition to male and female. It remains to be seen whether the French- and German-language Guidelines will be updated to include gender-neutral language in the next revision.
Michael Ford, on Behalf of Dive In