At the EU Competitiveness Council meeting on May 29 and 30, ministers will discuss a substantive progress report on technical issues prepared by the Commission.
Previous attempts to launch a Community patent, which would provide one unitary right covering all EU member states, have failed due to concerns about language, cost and court proceedings.
The main stumbling block has been the conflict between making patents available in all EU languages (23 at present) and keeping the costs to applicants down.
The latest plans propose to resolve that problem by using machine translations, which are already available for German, Spanish and French at the European Patent Office.
The plans have been discussed at meetings of the EU Council’s working party on intellectual property (patents) under the Slovenian Presidency, which runs during the first six months of this year. The most recent meetings were held on April 2 and April 8.
Officials from the Commission and Slovenian Presidency provided an update on the latest developments at a briefing in Brussels today.
The translation tools would include databases of several million standardized technical terms, which would be translated into all EU languages. They would be able to deliver translations in about 45 seconds.
Under the draft plans, machine translations would be provided for all 23 languages, ensuring equal treatment. However, setting up the translations would take several years and cost at least €2 million.
It is also likely that existing technology would have to be improved to deliver the required accuracy, as described in an article in the February 2008 issue of Managing IP.
The translations would be for information purposes only, and would have no legal value. For the estimated 1% of patents that are litigated, manual translations would be needed.
A working document with full details of the proposal is due to be published in mid-May, in time for the Competitiveness Council meeting at the end of the month.
If member states agree to press ahead with the latest proposals, they would then agree the text of a Community Patent Regulation. However, a political decision to adopt the Community patent will require unanimity among the EU’s 27 member states.
The members of the European Patent Convention (EPC), which include seven states that are not members of the EU, would also need to agree reforms to that treaty.
The proposals for a Community patent are likely to be discussed alongside plans for an EU patent litigation system.
The latest draft provisions for a litigation system were published on March 19, and would include jurisdiction over the as-yet unapproved Community patent as well as European patents.
These provisions provide for a court of first instance (which would comprise a central division and local/regional divisions) and court of appeal that would have jurisdiction over both Community patents and European patents.
They also set out the requirements for judges, scope of jurisdiction, effects of decisions, procedural rules, representation, languages, court procedures and powers, appeals, decisions and transitional provisions.
An un-drafted section of the document also provides for an arbitration and mediation centre.
Speaking to Managing IP last week, Jochen Pagenberg – one of a group of “experts” consulted by the Commission – said about developments on a European patent litigation system: “I would never have thought that something so serious could have come out of the process by now. We’re still not there and the text needs to be revised but these meetings are helping to achieve consensus.”
The court would be self-funding but would also be supported by the European Community where necessary.
It is likely that non-EU EPC members would be able to opt-in to the litigation agreement if they wish. However, it is believed that this opportunity has not been discussed in detail.
If member states can agree how to proceed on the draft proposals during the French presidency (which runs from July to December 2008), a Community patent could exist within six to eight years.
This time would be needed to revise and ratify the necessary legal instruments, and prepare the translation databases.
Many observers believe that French President Nicolas Sarkozy would like to use the EU Presidency to make progress on big EU projects, including science and space policy. Patent reform could be a part of this.
Already this year, France has ratified the London Agreement on translations, meaning that this cost-saving measure comes into effect on May 1. French ratification came in the face of strong opposition within the country.
Interviewed in the March issue of Managing IP, the head of the French IP office, Benoît Battistelli, was optimistic that agreement could be reached on both the Community patent and litigation agreement this year: “One of France’s other IP priorities is that we would also like to have agreement on the Community patent. We think this is possible. If we agree on the question of jurisdiction then the final issue is the language issue and we believe we can find some solutions to that.”
