Internal Markets Commissioner Charlie McCreevy has
called the move his one attempt at creating EU-wide patents, and
has backed down on previous Commission hard lines on how litigation
should be conducted.
The proposal seeks a compromise between the Commission's
Community Patent, with its own courts system, and the European
Patent Office-proposed European Patent Litigation Agreement
(EPLA).
According to one patents expert, McCreevy has effectively said
that he is prepared to accept the EPLA as a litigation system. "It
seems to be, well, we can't beat them, then we'll join them and get
the litigation arrangements we need for the Community Patent
through the mechanisms that are already established by the EPLA,"
John Gray, a patent attorney at Murgitroyd & Company, told
weekly technology law podcast OUT-LAW
Radio.
"I think the Commission is saying 'we haven't found another way
to do it'. I think the competing national interests and
sensitivities since 1975 have comprehensively defeated any
Commission effort to create its own ideal Community Patents
system," he said.
The EPO operates outside of the government structure of
Brussels, and is a creation of the European Patent Convention. It
already has an office which grants patents which can become
Europe-wide, and it has a proposal for a litigation structure, the
EPLA.
"Recent discussions with Member States show polarised positions
on patent jurisdiction arrangements with, on the one hand, Member
States supporting the draft EPLA in the context of the European
Patent Convention, and, on the other hand, Member States favouring
the establishment of a specific Community jurisdiction for patent
litigation on European and Community patents based on the EC
Treaty," said a Commission statement.
"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."
The two big problems faced by any attempt to harmonise patent
law are the costs of translation and the difficulties in setting up
a legal framework to deal with litigation. On litigation, McCreevy
moved towards the EPLA model.
"[A single court system] could be achieved by creating a unified
and specialised patent judiciary with competence for litigation on
European patents and future Community patents," said the McCreevy's
Communication on the subject. "Such a judicial system could be
strongly inspired by the EPLA model, in particular as regards the
specificities of patent litigation, but could allow for harmonious
integration in the Community jurisdiction."
There is less agreement on how to deal with the translation
issue. Translation is vital because of the contract that a patent
represents between a company and the public. "A patent is a
technical and legal document and when it's granted to you it gives
you the right to prevent somebody making some machine or using some
process that's covered by your patent," said Gray.
"The justification for granting patents is that the patent
specification contains a teaching of how to do the thing and it's
in return for disclosing how you do your process, how you make your
machine that you get granted this monopoly for a limited time, so
somebody in a country whose language isn't one of these official
languages doesn't get the benefit so much," said Gray. "They don't
get the benefit of the teaching that's in the document, and they
may even get the downside of infringing a patent that isn't written
in their language."
McCreevy said that he would use the Communication to attempt to
solve the problem of EU-wide patents once and for all. "Our 2006
stakeholder consultation showed that the EU simply must deliver, in
particular on the Community patent and sound litigation
arrangements, because in today's increasingly competitive global
economy Europe cannot afford to lose ground in an area as crucial
as patent policy," he said. "That is why I propose to have a fresh
look at the various options and to work with the Council and the
Parliament towards political consensus on real improvement of the
patent system."
