Proposals for a new European Patent

This guide is based on UK law. It was last updated in February 2008.

The end of 2001 was meant to herald a minor revolution in the way business protects its best ideas by giving a real boost to product development and competitiveness by way of a new 'European Patent'. However, the concept of a Community Patent remains stuck in the mud and the proposed alternatives for a system of unified protection for patents in Europe are under threat.

Patents protect inventions which are new, non-obvious and have application in business and industry. In return for disclosing the way the invention works, the inventor is given a genuine monopoly which can last for up to 20 years. Patents are viewed as the most powerful type of intellectual property since they protect not just the specific form of an invention but the surrounding field as well.

The great drawback of the patent system as it currently stands is the cost of obtaining a patent in the first place and then enforcing it if it is infringed. These problems derive in no small measure from the fact that patent protection is obtained on a country-by-country basis, resulting in duplication of costs and professional advice, onerous translation fees and uncertainty over grant, validity and enforcement. Different objections can be raised by different examiners in different countries and different interpretations can be made by the national courts (in one case, for example, the same patent was found to be infringed by the German and Dutch courts but not infringed by an English Court).

In Europe currently patents can be obtained either on a country-by-country basis or by using the European Patent System (EPS) which allows a unitary administration application leading to a bundle of separate national patents. Whichever route is used the patents still have to be enforced in the courts of each country.

Although the EPS has significantly reduced the cost of making multiple national patent applications, an average patent covering eight countries kept in force for 10 years will cost £20,000, i.e. some five times more than the equivalent cost of a US or Japanese patent, with no less than 40% of this expense resulting from translation costs.

To address these issues the European Commission proposed a new Community Patent covering the member states. The proposal was that one unitary application would be filed in either English, German or French with only the claims being filed in all three languages. The patent would then have been enforced in a new, central patent court within the European Court of Justice which would have had exclusive jurisdiction over questions of validity and infringement. However, following three attempts to establish the new Community Patent, the proposal was dropped.

An alternative proposal for a European Patent Litigation Agreement ("EPLA"), committing its signatory states to an integrated judicial system for patent disputes, including uniform rules of procedure and a common appeal court, was held out as a solution to the deadlock reached over the Community Patent.

It was hoped that its adoption would not require the approval of any of the EC institutions and could be adopted by unanimous agreement between the European Patent Convention contracting states. However, European Parliament's Legal Services declared the EPLA illegal and in direct contradiction of existing European law and treaties (See: European Parliament blocks patent agreement, OUT-LAW News, 15/02/2007). The Legal Services felt that it was highly likely that approval of the EPLA by the EC institutions would be required.

This means that the chances of the EPLA being adopted in its current form are slim (the opposition of some Member States, notably France, meaning that unanimous support from the Council for Community is unlikely to be forthcoming).

However, the European Commission remains openly supportive of an improved patent system in Europe. Attention is focussed on the London Agreement (in force from 1st May 2008) which is an optional agreement between Member States of the EPO aimed at reducing the translation costs of European patents granted under the European Patent Convention. Under the Agreement, translations of the patent will only be required in either English, French or German (depending on the "official" or "prescribed" language of the contracting state). There will still be a right to require translation of the claims into the official language of the contracting state and a translation should be provided by the patentee in the case of a dispute relating to a patent.

With regard to the establishment of a single European patent judiciary, it has been suggested that it may be possible to amend the EPLA to overcome the obstacles identified by the Legal Services. A revised EPLA might require contracting states to adopt national legislation conferring on the European Patent Court the status of a national court for the purposes of their domestic law. This would circumvent some of the issues raised by Legal Services around conflict and approvals. Other commentators have suggested borrowing heavily from the EPLA to create a new jurisdictional structure; making use of existing national structures and with a fully centralised appeal court; but ultimately respecting the ECJ as the final arbiter.

EU ministers continue to make progress towards a single European Patent Policy and the German Presidency is reported to be working particularly closely with the Commission to promote the community approach. At the EU Presidency/BDI Conference in April 2007, McCreevy spoke about the European Patent Policy stating that;

"The way forward will require constructive dialogue and compromise. Without a readiness of all parties to really try and resolve this issue in the common interest, we simply will not make any progress. I am aware that all the available options raise specific legal issues which need to be resolved once concrete proposals are made. But is there is indeed a will, then there will be a way."