Community patent "within five years" |
|
The Commission's long-awaited communiqué also attempts to revive stalled efforts to introduce a single, EU-wide Community patent. And one commissioner at least is optimistic about it happening. Speaking to reporters at a Patent Forum in Munich organized by the EPO in April, the vice-president of the European Commission, who is in charge of enterprise and industry, said that it would happen "within five years". Guenter Verheugen described the Community patent as "indispensable" for European companies. "When it comes to IP, a lot of companies, especially SMEs, cannot afford to protect themselves. The normal European company isn't Bosch, the average company is an SME which has fewer than 10 employees. They have a relatively low turnover so the cost of protecting their IP is a central consideration." He also criticized the prohibitively expensive system of patent translations in Europe. "If any politician is bold enough to tell me that's OK, then they should do so. This really has to stop. Those that stand in the way [of reform] are not only damaging Europe but are also damaging themselves." The Commission wants to cut the costs of obtaining and maintaining IP protection in Europe by limiting the languages used in patent applications to English, French and German, introducing a centralized patent litigation system and establishing an EU-wide Community patent to replace the system of national patents now in force. But the Commission faces opposition to some of its proposals from a number of national governments in the EU. "I urge member states to reconsider their position to allow us to move forward," Verheugen said. But some IP owners at the Forum were less optimistic about the timetable for achieving a Community patent than Commissioner Verheugen, as well as being less convinced if its usefulness. "It's irrelevant," one IP counsel told MIP. "In many industries if you have a patent in one country – say Germany – then you don't need one elsewhere. No one would think of launching a car or a telecoms service if they couldn't sell it in Germany. The European single market has helped a lot. The Commission should be proud of what they have done to create that." |
Fifteen months after launching a consultation on the future of Europe's patent system, and four months after its conclusion was promised, the European Commission has finally published its blueprint for an EU-wide patent strategy.
But following an increasingly polarized debate between those member states that backed the European Patent Litigation Agreement and those that backed a proposal championed by France to create a Community court for European patents, the Commission has been obliged to propose a compromise solution.
"Under these circumstances, the Commission believes that consensus could be built on the basis of an integrated approach which combines elements of both EPLA and a Community jurisdiction," it said in a statement on April 3.
"The way forward could be to reflect on the creation of a unified and specialized patent judiciary, with competence for litigation on European patents and future Community patents. This system could be inspired by the EPLA model but could allow for integration in the Community jurisdiction."
But not all users of the patent system are satisfied with the proposals. "I'm pleased it's out but it's so wishy-washy that I am not sure how it can go forward," said Kevin Mooney, a partner with Simmons and Simmons and president of the European Patent Lawyers Association, which has promoted the EPLA.
And Ilias Konteas of BusinessEurope said that it was time for politicians to make a decision. "It has already been delayed a lot. I am not sure how many delays we can afford to have."
As a first step, the Commission said work should concentrate on building consensus among member states around the principles on which any system of European patent litigation is based.
Any such system, it said, should create a unified and specialized patent judiciary with competence for litigation on European patents and future Community patents. It could be strongly inspired by the EPLA model, but could also allow for "harmonious integration" in the Community jurisdiction.
It should ensure an "appropriate degree of proximity to the parties and relevant circumstances of the case" and should comprise a limited number of first instance chambers as well as a fully centralized appeal court which would ensure uniformity of interpretation.
The chambers, which could make use of existing national structures, should form an integral part of the single jurisdictional system. The allocation of cases would be handled on the basis of clearly defined and transparent rules. The jurisdiction would have competence for infringement and validity actions as well as for related claims such as damages, and for specific proceedings responding to the needs of stakeholders.
The appeal court and the first instance chambers should work under common rules of procedure based on best practices in the member states.
"It wants a court that looks more like that envisaged in the EPLA but which is incorporated into the Community judicial system but it just doesn't tell us how," said Mooney.
"Nor does it mention the critical issue of languages. If you go to a system in which each first instance court can try cases in its own language then that will not be popular with industry," he added. "It simply avoids the controversial issues."
There is no fixed timetable for the next steps but on April 23 Germany, which holds the presidency of the EU, asked member states to complete a questionnaire on the proposals in an attempt to build a consensus.
• The Commission also said it would present a separate Communication on Intellectual Property Rights, dealing with non-legislative issues, in 2008. Originally slated for publication later this year, the Communiqué is expected to deal with issues such aspatent thickets, Community trade mark fees and patent litigation insurance.
