| European patent law |
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| European Patent Organisation |
| European Union |
| Biotech directive |
| Centralization and harmonization |
| EU patent Brussels Regime London Agreement |
The EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent [1] and sometimes abbreviated as COMPAT,[2] is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent throughout the European Union.
The EU patent should not be confused with European patents which are granted under the European Patent Convention. European patents, once granted, become a bundle of nationally enforceable patents, in the designated states. This can be expensive for both patentees and third parties in that enforcement must be carried out through national courts in individual countries, and revocation cannot be accomplished centrally once the nine-month opposition period has expired. The EU patent is intended to solve these problems, and also to provide a patent right that is consistent across Europe, thus fulfilling one of the key principles of the Internal Market in that the same market conditions should exist wherever in Europe trade is carried out - different patent rights in different countries presents a distortion of this principle.
In view of the difficulties in reaching an agreement on the community patent,[3] other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement, which entered into force on May 1, 2008—and which has reduced the number of countries requiring translation of European patents granted nowadays under the European Patent Convention, and the corresponding costs to obtain a European patent[4]— and the European Patent Litigation Agreement (EPLA), which is as of 2010 only a proposal.
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Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.
The "Luxembourg Conference on the Community Patent" took place indeed in 1975 and the Convention for the European Patent for the common market, or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on December 15, 1975, by the 9 member states of the European Economic Community at that time. However the CPC never entered into force. It was not ratified by enough countries.
Fourteen years later, the Agreement relating to Community patents was made at Luxembourg on December 15, 1989. It attempted to revive the CPC project, but also failed. This Agreement consisted of an amended version of the original Community Patent Convention. Twelve states signed the Agreement: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and United Kingdom. All of those states would need to have ratified the Agreement to cause it to enter into force,[5] but only seven did so: Denmark, France, Germany, Greece, Luxembourg, the Netherlands, and United Kingdom.[6]
Nevertheless, as a minor consolation, a majority of member states of the EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the Strasbourg Convention.
In 2000, renewed efforts from the European Union resulted in a Community Patent Regulation proposal, sometimes abbreviated as CPR. It provides that the patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. This proposal is aimed to achieve a considerable reduction in translation costs.
Nevertheless, additional translations could become necessary in legal proceedings against a suspected infringer. In such a situation, a suspected infringer who has been unable to consult the text of the patent in the official language of the Member State in which he is domiciled, is presumed, until proven otherwise, not to have knowingly infringed the patent. In order to protect a suspected infringer who, in such a situation, has not acted in a deliberate manner, it is provided that the proprietor of the patent will not be able to obtain damages in respect of the period prior to the translation of the patent being notified to the infringer.
The proposed Community Patent Regulation should also establish a court holding exclusive jurisdiction to invalidate issued patents; thus, a Community Patent's validity will be the same in all EU member states. This court will be attached to the present European Court of Justice and Court of First Instance through use of provisions in the Treaty of Nice.
Discussion regarding the Community patent had made clear progress in 2003 when a political agreement was reached on March 3, 2003. However, one year later in March 2004 under the Irish presidency, the Competitiveness Council failed to agree on the details of the Regulation. In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and in the end proved insoluble.
After the council in March 2004, EU Commissioner Frits Bolkestein said that "The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010." Adding:
It is a mystery to me how Ministers at the so-called 'Competitiveness Council' can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come.[7]
Jonathan Todd, Commission's Internal Market spokesman, declared:
Normally, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. (...) It is extremely unfortunate that European industry’s competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests.[8]
European Commission President Romano Prodi, asked to evaluate his five-year term, cites as his weak point the failure of many EU governments to implement the "Lisbon Agenda", agreed in 2001. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent".[9]
There is support for the Community patent from various quarters. From the point of view of the European Commission the Community Patent is an essential step towards creating a level playing field for trade within the European Union. For smaller businesses, if the Community patent achieves its aim of providing a relatively inexpensive way of obtaining patent protection across a wide trading area, then there is also support.
For larger businesses, however, other issues come into play, which have tended to dilute overall support. In general, these businesses recognise that the current European Patent system provides the best possible protection given the need to satisfy national sovereignty requirements such as regarding translation and enforcement. The Community Patent proposal was generally supported if it would do away with both of these issues, but there was some concern about the level of competence of the proposed European Patent Court. A business would be reluctant to obtain a Europe-wide patent if it ran the risk of being revoked by an inexperienced judge. Also, the question of translations would not go away - unless the users of the system could see significant change in the position of some of the countries holding out for more of a patent specification to be translated on grant or before enforcement, it was understood that larger businesses (the bulk of the users of the patent system) would be unlikely to move away from the tried and tested European Patent.
Thus, in 2005, the Community patent looked unlikely to be implemented in the near future. However, on January 16, 2006 the European Commission "launched a public consultation on how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs." The Community patent was one of the issues the consultation focused on.[10] More than 2500 replies were received.[2] According to the European Commission, the consultation showed that there is widespread support for the Community patent but not at any cost, and "in particular not on the basis of the Common Political Approach reached by EU Ministers in 2003".[2]
In February 2007, EU Commissioner Charlie McCreevy was quoted as saying:
The proposal for an EU-wide patent is stuck in the mud. It is clear to me from discussions with member states that there is no consensus at present on how to improve the situation.[11]
The European Commission released a white paper in April 2007 seeking to "improve the patent system in Europe and revitalise the debate on this issue."[12] On April 18, 2007, at the European Patent Forum in Munich, Germany, Günter Verheugen, Vice-President of the European Commission, said that his proposal to support the European economy was "to have the London Agreement ratified by all member states, and to have a European patent judiciary set up, in order to achieve rapid implementation of the Community patent, which is indispensable".[13] He further said that he believed this could be done within five years.[13][14]
In October 2007, the Portuguese presidency of the Council of the European Union proposed a EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)".[15] In November 2007, EU ministers were reported to have made some progress towards a community patent legal system, with "some specific results" expected in 2008.[16]
In 2008, the idea of using machine translations to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent.[17][18] Meanwhile, European Commissioner for Enterprise and Industry Günter Verheugen declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent.[19]
In December 2009, it was reported that the Swedish EU presidency had achieved a breakthrough in negotiations concerning the community patent. The breakthrough was reported to involve setting up a single patent court for the EU,[20] however ministers conceded much work remained to be done before the community patent would become a reality.[21][22]
According to the agreed plan, the EU will accede to the European Patent Convention as a contracting state, and patents granted by the European Patent Office will, when validated for the EU, have unitary effect in the territory of the European Union.[23] As of July 2010, the issue of the language regime to adopt was still being debated.[24][25][26] On November 10, 2010, it was announced that no agreement had been reached and that, "in spite of the progress made, [the Competitiveness Council of the European Union had] fallen short of unanimity by a small margin,"[27] with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination,[28] had "re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent."[29]
In December 2010, the use of the enhanced cooperation procedure was proposed by twelve Member States, in order to set up a unitary patent applicable in all participating European Union Member States.[31] According to the Financial Times, such procedure is rare, and has been used only once in the past (for harmonising divorce laws across several EU Member States).[31] In early 2011, the procedure leading to the enhanced cooperation was reported to be progressing. Twenty-five Member States have written to the European Commission requesting to participate, with just Spain and Italy remaining outside the enhanced cooperation process, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced cooperation procedure by 471 votes to 160.[32] On 10 March 2011 the Council has authorised enhanced co-operation for unitary patent protection.[33] Two days earlier, on 8 March 2011, the Court of Justice of the European Union has issued its Opinion 1/09 stating that an integral part of the foreseen patent system - the creation of a European and Community Patent Court - would be incompatible with EU law.[34] The Hungarian Presidency of the Council the same day, however, insisted that this Opinion would not affect enhanced cooperation in the field of unitary patent protection.[35]
On 30 May 2011, Italy and Spain sued against the trilingual (English, French, German) system which the EU patent would be based on.[36]
As of November 2011, negotiations on the enhanced cooperation system were reportedly advancing rapidly—too fast, in some views.[37] It will require an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September.[38] A draft of the agreement was issued on November 11, 2011.[39] There are serious criticisms of the current proposals, mostly unresolved.[40] A meeting of the Competitiveness Council on 5 December failed to agree fully on a final text.[41] In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located,[42] "with London, Munich and Paris the candidate cities."[43] It is still possible that Italy and Spain might agree to drop their opposition to the EU patent.[43]
The Polish Presidency, which aimed to produce a final agreed text that could be initialled on 22 December, acknowledged, on December 16, 2011, the failure to reach an agreement "on the question of the location of the seat of the central division."[30] "The future Danish Presidency will therefore inherit this touchy issue."[30][44][45]
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