Community Patent
Encyclopedia
The EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, 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 patent
s 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, 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— and the European Patent Litigation Agreement
(EPLA), which is as of 2010 only a proposal.
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, but only seven did so: Denmark
, France
, Germany
, Greece
, Luxembourg
, the Netherlands
, and United Kingdom
.
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
.
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:
Jonathan Todd, Commission's Internal Market spokesman, declared:
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".
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. More than 2500 replies were received. 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".
In February 2007, EU Commissioner
Charlie McCreevy
was quoted as saying:
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." 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". He further said that he believed this could be done within five years.
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)". 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.
In 2008, the idea of using machine translation
s to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent. 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.
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. As of July 2010, the issue of the language regime to adopt was still being debated. 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," with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination, 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."
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. The Hungarian Presidency of the Council the same day, however, assured that this Opinion would not affect enhanced cooperation in the field of unitary patent protection.
On 30 May 2011, Italy and Spain sued against the trilingual (English, French, German) system which the EU patent would be based on.
As of November 2011, negotiations on the enhanced cooperation system were reportedly advancing rapidly—too fast, in some views. 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. A draft of the agreement was issued on November 11, 2011. A meeting of the Competitiveness Council is planned for 5-6 December, aiming to produce a final agreed text that can be initialled on 22 December. A separate question is where the Central Division of a Unified Patent Court should be located. To date only Germany has offered to host it.
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
law measure being debated within the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, which would allow individuals and companies to obtain a unitary patent throughout the European Union.
The EU patent should not be confused with European patent
European Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
s which are granted under the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
. 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
Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed...
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
Single market
A single market is a type of trade bloc which is composed of a free trade area with common policies on product regulation, and freedom of movement of the factors of production and of enterprise and services. The goal is that the movement of capital, labour, goods, and services between the members...
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, other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation
Translation
Translation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of...
(of patents when granted) and litigation
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
, namely the London Agreement
London Agreement (2000)
The London Agreement, formally the Agreement on the application of Article 65 of the Convention on the Grant of European Patents and sometimes referred to as the London Protocol, is a patent law agreement concluded in London on 17 October 2000 and aimed at reducing the translation costs of European...
, 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— and the European Patent Litigation Agreement
European Patent Litigation Agreement
The draft European Patent Litigation Agreement , or formally the Draft Agreement on the establishment of a European patent litigation system, is a proposed patent law agreement aimed at creating an "optional protocol to the European Patent Convention which would commit its signatory states to an...
(EPLA), which is as of 2010 only a proposal.
1970s-1980s : Community Patent Convention
Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.The "Luxembourg
Luxembourg
Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south...
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
European Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...
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
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Greece
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
, Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Luxembourg
Luxembourg
Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, and United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. All of those states would need to have ratified the Agreement to cause it to enter into force, but only seven did so: Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Greece
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
, Luxembourg
Luxembourg
Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, and United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
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
Convention on the Unification of Certain Points of Substantive Law on Patents for Invention
The Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, also called Strasbourg Convention or Strasbourg Patent Convention, is a multilateral treaty signed by Member States of the Council of Europe on November 27, 1963 in Strasbourg, France...
.
2000-2004: EU Regulation
In 2000, renewed efforts from the European Union resulted in a Community Patent RegulationEuropean Union regulation
A regulation is a legislative act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law...
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
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
and Court of First Instance
Court of First Instance
The General Court is a jurisdictional instance of the Court of Justice of the European Union. From its inception on 1 January 1989 to 30 November 2009, it was known as the Court of First Instance .-Competence:...
through use of provisions in the Treaty of Nice
Treaty of Nice
The Treaty of Nice was signed by European leaders on 26 February 2001 and came into force on 1 February 2003. It amended the Maastricht Treaty and the Treaty of Rome...
.
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
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
presidency
Presidency of the Council of the European Union
The Presidency of the Council of the European Union is the responsibility for the functioning of the Council of the European Union that rotates between the member states of the European Union every six months. The presidency is not a single president but rather the task is undertaken by a national...
, 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
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
remained problematic issues throughout discussions and in the end proved insoluble.
Reactions to the failure
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
Frits Bolkestein
Frits Bolkestein
Frederik "Frits" Bolkestein is a retired Dutch politician of the People's Party for Freedom and Democracy . He served as a Member of the House of Representatives from 16 January 1978, until 5 November 1982, when he became State Secretary for Economic Affairs from 5 November 1982, until 14 July...
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:
Jonathan Todd, Commission's Internal Market spokesman, declared:
European Commission President Romano Prodi
Romano Prodi
Romano Prodi is an Italian politician and statesman. He served as the Prime Minister of Italy, from 17 May 1996 to 21 October 1998 and from 17 May 2006 to 8 May 2008...
, 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".
Support for the Regulation
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.
2005-today: Stalemate and new debate
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
"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. More than 2500 replies were received. 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".
In February 2007, EU Commissioner
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
Charlie McCreevy
Charlie McCreevy
Charles "Charlie" McCreevy is a former Irish politician. He was the European Commissioner for Internal Market and Services from 2004–2010. He was first elected to Dáil Éireann as a Fianna Fáil TD in 1977 and held the seat in Kildare until 2004 when he became Ireland's European Commissioner...
was quoted as saying:
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." On April 18, 2007, at the European Patent Forum in Munich
Munich
Munich The city's motto is "" . Before 2006, it was "Weltstadt mit Herz" . Its native name, , is derived from the Old High German Munichen, meaning "by the monks' place". The city's name derives from the monks of the Benedictine order who founded the city; hence the monk depicted on the city's coat...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Günter Verheugen
Günter Verheugen
-Erler:At around the same time, photographs appeared showing him holidaying with Petra Erler, the head of his private office. A Commission spokesman backed him by saying "the private holidays of Vice President Verheugen in Lithuania this summer did not violate the rules applicable to members of the...
, 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". He further said that he believed this could be done within five years.
In October 2007, the Portuguese presidency of the Council of the European Union
Presidency of the Council of the European Union
The Presidency of the Council of the European Union is the responsibility for the functioning of the Council of the European Union that rotates between the member states of the European Union every six months. The presidency is not a single president but rather the task is undertaken by a national...
proposed a EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)". 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.
In 2008, the idea of using machine translation
Machine translation
Machine translation, sometimes referred to by the abbreviation MT is a sub-field of computational linguistics that investigates the use of computer software to translate text or speech from one natural language to another.On a basic...
s to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent. Meanwhile, European Commissioner for Enterprise and Industry Günter Verheugen
Günter Verheugen
-Erler:At around the same time, photographs appeared showing him holidaying with Petra Erler, the head of his private office. A Commission spokesman backed him by saying "the private holidays of Vice President Verheugen in Lithuania this summer did not violate the rules applicable to members of the...
declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent.
Agreement in December 2009, and language issue
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, however ministers conceded much work remained to be done before the community patent would become a reality.According to the agreed plan, the EU will accede to the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
as a contracting state, and patents granted by the European Patent Office
European Patent Office
The European Patent Office is one of the two organs of the European Patent Organisation , the other being the Administrative Council. The EPO acts as executive body for the Organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative...
will, when validated for the EU, have unitary effect in the territory of the European Union. As of July 2010, the issue of the language regime to adopt was still being debated. 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," with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination, 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."
Enhanced cooperation
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. 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). 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. On 10 March 2011 the Council has authorised enhanced co-operation for unitary patent protection. Two days earlier, on 8 March 2011, the Court of Justice of the European UnionCourt of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...
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. The Hungarian Presidency of the Council the same day, however, assured that this Opinion would not affect enhanced cooperation in the field of unitary patent protection.
On 30 May 2011, Italy and Spain sued against the trilingual (English, French, German) system which the EU patent would be based on.
As of November 2011, negotiations on the enhanced cooperation system were reportedly advancing rapidly—too fast, in some views. 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. A draft of the agreement was issued on November 11, 2011. A meeting of the Competitiveness Council is planned for 5-6 December, aiming to produce a final agreed text that can be initialled on 22 December. A separate question is where the Central Division of a Unified Patent Court should be located. To date only Germany has offered to host it.
See also
- Paris Convention for the Protection of Industrial PropertyParis Convention for the Protection of Industrial PropertyThe Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property...
- Strasbourg ConventionConvention on the Unification of Certain Points of Substantive Law on Patents for InventionThe Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, also called Strasbourg Convention or Strasbourg Patent Convention, is a multilateral treaty signed by Member States of the Council of Europe on November 27, 1963 in Strasbourg, France...
(1963) - European Patent ConventionEuropean Patent ConventionThe Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
External links
- European Commission page on Patents ("Enhancing the patent system in Europe", "Community Patent", etc.)
- Amended Community Patent Convention (1989)
- 1989's Agreement relating to Community patents
- Implementing Regulations to the Convention for the European patent for the common market
- Protocol on the settlement of litigation concerning the infringement and validity of Community Patents (Protocol on litigation)
- Protocol on privileges and immunities of the common appeal court relating to Community patents
- Protocol on the statute of the common appeal court relating to Community patents
- Protocol on a possible modification of the conditions of entry into force of the Agreement relating to Community patents
- New proposal for a Council Regulation on the Community patent (2000)
- Pages by various organisations