Moving Towards an Enhanced Patent System in Europe – Update

03 Feb 2011

4 min read

The European patent reform has been in the works for over a decade now. The European Commission first called for a regulation to settle inconsistencies and this has been the source of exhaustive inter-governmental and EU debate and dispute over the years. The final hurdle in the path of the new European patent is the mutual agreement of all Member States on workable translation arrangements that are cost effective (reducing costs to ensure accessibility to patent protection), simplified (less administrative burden and less complexity for the users) and that ensure legal certainty, in order to stimulate innovation.

The European Commission has indicated that a single EU Patent system would effectively reduce translation costs alone from the current average of EUR14,000 to just EUR680 per patent.
During a meeting held on the 12th October 2010, the Competitiveness Council of the European Union reiterated the importance of an enhanced patent system in Europe for boosting the competitiveness of the EU’s innovative industry and agreed that the current system represents “a major obstacle for innovative companies and therefore has a negative impact on the functioning of the internal market”.
Under the current patent system in Europe applicants may apply either for national patents granted by Member States’ industrial property offices or for a European patent granted by the European Patent Office (EPO) in accordance with the European Patent Convention.
The current system requires the claims of a European patent to be translated into the two of the official EPO languages (English, German or French). The patent must then be ‘validated’ individually in the European jurisdictions in which patent protection is sought by the applicant, thereby creating a bundle effect inevitably requiring several additional translations and increased costs.
Moreover, disputes arising out of European Patents are currently brought before national courts, which could lead to multiple litigation of the same patent in different Member States, and possibly contradictory judgments.
The much anticipated, and perhaps somewhat overdue, EU patent reform seeks to do away with the current fragmentation of the European patent system and aims to increase legal certainty on two fronts. Firstly, under the proposed system the patent as granted in one of the official EPO languages would represent the authentic text thereby providing legal certainty as to the scope of the claims and secondly, by making litigation more accessible and predictable whilst eliminating prohibitive costs (in particular for young innovative companies) including expensive and risky multi-forum litigation through the creation of the common pan-European patent court structure.
The jurisdiction of the European patent court is expected to extend to hearings on patent infringements and invalidity cases brought in respect of both existing European patents as well as those to be granted under the proposed regime. Subject only to its proper implementation, such a system could allow cases to be heard before judges with high levels of specialisation together with the required legal and technical expertise in patents and would do away with costly parallel litigation in various different Member States.
An apparent lack of unanimity on the issue of official language/s and translation arrangements among the 27 Member States has been touted as the cause for significant delay that appears to have stalled progress on an EU-wide patent system. Whilst all Member States seemingly agree in principle on the relevance of the EU patent for the internal market, the inability to reach a unanimous decision stems from a number of doubts which have been raised by some Member States as to whether the new regime would give an unfair advantage to patent applicants from the UK, France or Germany.
In an effort to fast-track the implementation of the proposed European patent system reform, several Member States are considering the viability of the enhanced cooperation procedure to reach an agreement on the issue and have requested the European Commission to consider the feasibility of proposing enhanced cooperation in this area. Enhanced cooperation allows nine or more Member States to proceed with a measure they deem important but that is blocked by a minority of dissenting Member States. Other Member States are entitled to join at a later date.
Both the Competitiveness Council and the Commission are currently considering the compatibility of this kind of enhanced cooperation with the EU treaty, as well as the procedural steps required to initiate it and are expected to reconvene within the coming weeks.
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