The proposal for such a patent, put forward by IBM in a discussion paper, is designed to break through the deadlock over a pan-EU Community patent that has been sought for decades.
Talks about introducing a Community patent covering the 27 member states have so far stalled, with the issue of language a key sticking point. Some patent owners have expressed concerns that having patents in only a limited number of languages could mean that technology users would be found to infringe patents that they cannot understand.
The IBM proposal addresses that issue by providing for patents to be filed in just one language, but removing the threat of an injunction.
Patents registered as Community patents in this model would be automatically endorsed licences of right. This model would exist as an alternative to conventional patents.
“On grant, the applicant would choose whether it wants a Community Patent automatically endorsed Licenses of Right or whether it wants to use the existing routes to national patents,” says the discussion paper.
The IBM proposal came out of discussions arising from the EPO’s scenarios project, and particularly the concept of soft IP that arose from the project’s so-called blue skies scenario.
While the proposed Community patent would not allow injunctions to stop infringement, patent owners would be able to receive monetary compensation and perhaps a cross-licence.
IBM claims this “greatly assists innocent infringers since they would be assured of obtaining a license, and would not be faced with the prospect of their business being disrupted or closed down”.
If the parties cannot agree, then terms would be decided by the courts.
Roger Burt, European IP counsel for IBM, told MIP Week the proposal is designed to start a debate: “At the moment, all patents look the same. This would take away some of the problems of doing patent clearance; I just have to focus on patents where I know they can get injunctions.”
He added that there has already been interest in the Community patent not just from people in the IT industry but also from areas as varied as pharmaceuticals, chemicals and automobiles.
While he did not rule out the possibility that the soft-IP principle could be applied elsewhere in the world, Burt said it was being raised in Europe as a “positive approach” to address the deadlock over proposals for an EU Community patent.
The proposal has already been presented to EU and EPO officials who are considering it as part of the debate on patent reform in Europe.
Countries including the UK and Germany already have the option of licences of right in their patent systems, with the incentive of reduced fees for patent owners that use them, and Burt said IBM is “looking at it very seriously at the moment”.
