The European Commission has issued a press release describing its new proposal to create a Community Patent. Whether the Commission will be able to achieve adoption of its proposal in anything close to the form described below remains to be seen. Some Member States are likely to object to the proposal's approach to patent translations, and some are also likely to object to depriving national courts of jurisdiction over the validity and infringement of the new Community patents and the creation of a single European court (probably in Luxembourg) to adjudicate such matters.
Following is the full text of the Commission's press release.
IP/00/714, Brussels, 5 July 2000]
The European Commission has proposed the creation of a Community Patent to give inventors the option of obtaining a single patent legally valid throughout the European Union. The proposal would significantly lessen the burden on business and encourage innovation by making it cheaper to obtain a patent and by providing a clear legal framework in case of dispute. The Lisbon and Feira European Councils cited the creation of a Community Patent as an essential part of Europe's efforts to harness the results of research to new scientific and technological developments and so contribute to ensuring a competitive, knowledge-based economy in Europe. The Summits recommended that the Community Patent should be available by the end of 2001.
Internal Market Commissioner Frits Bolkestein said: "The creation of a Community Patent is an essential part of Europe's efforts to reduce the cost burdens on business and help ensure that research and technological and scientific innovation can be successfully applied by industry and commerce. Often in the past Europe has provided the research, but it is others who have used it to commercial advantage. We need to turn that around. Europe's reputation for research should be matched by a reputation for innovative, competitive product development. A single patent will slash the costs of patent coverage while guaranteeing a high level of protection. Such a Community Patent will provide an important competitive tool to European industry and notably SMEs in the age of the new economy."
At present patents are awarded either on a national basis or through the European Patent Office (EPO) in Munich, which grants so-called European Patents. These are essentially a bundle of national patents. The EPO, established by the intergovernmental European Patent Convention of 1973, offers a single application and granting procedure and so saves the applicant the trouble of having to file with a series of national patent offices. But each Member State may still require that, in order to be legally valid in their territory, the European Patent must be translated into their official languages. Moreover, in the case of disputes, it is national courts that are competent so that, in principle, there can be 15 different legal proceedings, with different procedural rules in every Member State and with the risk of different outcomes. The costs of translation mean that it is currently significantly more expensive to patent an invention in Europe than it is in the US or Japan. When added to the potential inconvenience of working with a variety of different legal systems in case of dispute, the current system is a significant barrier to research, development and innovation.
Under the Commission's new proposal for a Council Regulation, Community Patents would be issued by the European Patent Office. National and European Patents would coexist with the Community Patent system, so that inventors would be free to choose which type of patent protection best suited their needs.
This proposal would provide for a Community Patent system that is was both affordable and legally certain.
A principal aim of the proposal is to reduce the cost of patenting an invention in Europe. The table below shows clearly the variation in costs of patenting in Europe compared to the US and Japan:
Filing and search fees
*(typical application, 8 Member States)
The cost of the current European patent is shown to be three to five times higher than that of Japanese and US patents.
A patent application consists of a detailed description of the invention and a set of claims, which defines the scope of the protection provided by the patent. At present, a typical European Ppatent (to apply in eight Member States) costs approximately 49,900 Euros, of which 12,600 (some 25 per cent) are accounted for by translation costs. In the case of a European Patent to apply in all 15 Member States and requiring translation into all eleven EU official languages, the translation costs go up to some 17,000 euros.
The proposal to create a Community Patent would reduce translation costs to some 2,200 Euros by not requiring any translation beyond that already foreseen in the Munich Convention for the granting of the patent (this implies that the patent would be granted and published in one of the working languages of the EPO English, French or German - and the claims (i.e. the part of the patent which defines the scope of protection) would be translated into the other two).
In practice the universal language for patents is English and translations are very rarely consulted. For example at the 'Institut National de la ProprietÃ© Industrielle', the French national institute of industrial property rights, translations are consulted in only 2 per cent of cases.
Currently patent disputes (including those concerning European Patents) are referred to national courts. The procedures may be different in every Member State and potentially there can be 15 different interpretations of how the law as laid down in the European Patent Convention applies in a particular case.
The Commission suggests that to deal with disputes related to the question of infringements and validity of Community patents a new centralised Community tribunal within the framework of the European Court of Justice should be set up.
This would require an amendment to the Treaty, which the Commission has already called for in March of this year in its position on the Intergovernmental Conference. Discussions to this end are currently held within the Intergovernmental Conference in the context of strengthening and reforming the Community judicial system.
The competence of the tribunal will be limited essentially to disputes concerning infringement and/or validity of the Community patent. Other disputes such as relating to contractual licensing or ownership of the patent will be handled by national courts.
The proposal follows three decades of attempts to create a single Community Patent. During this period the European Patent Convention of 1973, to which all Member States (plus Switzerland, Monaco, Liechtenstein and Cyprus) are signatories, established the intergovernmental European Patent Office in Munich and a single procedure for granting patents. The 1975 Luxembourg Convention aimed take this a stage further and create a Community Patent, but it was never fully ratified.
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