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MEPs will negotiate on unitary patent plans

Members of the European Parliament (MEPs) will negotiate with EU national governments on the establishment of a system for obtaining unitary patent protection, the Parliament has said.05 Dec 2011

'Rapporteurs' from the Parliament will try to negotiate agreement over a "package" of measures related to a unitary patent system, including regulations specifying the technical details of the patent system itself, the language regime to be used in unitary patent applications and approvals and the establishment of procedures for the operation of a unified patent court, the Parliament said. The "mandate" for the negotiations was approved in a vote by the Parliament's Legal Affairs Committee.

Governments will be asked today at a Competitiveness Council meeting to reach agreement on the plans, which involve 25 of the EU's 27 member states co-operating on a single patent scheme.

"The European Parliament's rapporteurs, who will negotiate with national governments, will treat the three proposals (unitary patent, language regime and unified patent court) as a package, meaning none will be agreed without the others," the Parliament said in a statement.

"According to the mandate, approved by the committee with 16 votes in favour and 3 against, the MEP negotiators will also ask that the three laws enter into force at the same time," it said.

Plans to establish a cheaper and more efficient way for inventors to gain patent protection across Europe have been mooted for years. Europe-wide protection is only possible at the moment by validating a patent registered with the European Patent Office (EPO) in each individual country. To be valid in a country a patent must be translated into its language. The European Commission has sought a cheaper system because of what it has said is the prohibitive cost of that process.

"The aim of creating an EU patent is twofold. First to reduce current patenting costs by up to 80%, so as to improve the competitive position of EU firms vis-à-vis their counterparts in the US and Japan, where patents are substantially cheaper. Second, it should help to avoid the legal confusion created when dealing with differing national patent laws," the Parliament said.

Last year 12 EU member states got together to push for an EU-wide patent system. Under the Lisbon Treaty nine or more EU countries can use the EU's processes and structures to make agreements that bind only those countries. The proposals are now backed by every EU country except Italy and Spain.

Under the unitary patent proposals a European patent holder would make only one application to the EPO for patent protection across the 25 EU countries that have signed up to the scheme, with successful patents being initially published in English, French or German and eventually translated into all three languages. Applications for unitary patent protection not made in any of those languages would have to be translated in order to be considered, although applicants would be compensated for the cost of this.

Italy and Spain have objected to the plans, with both lodging legal cases with the European Court of Justice (ECJ). Spain has said that restricting the language regime to English, French and German was discriminatory whilst Italy has said the plans are unlawful and would distort competition.

The European Commission has previously said that it can cost more than €32,000 in translation and other costs to obtain a Europe-wide patent, compared with an average cost of $1,850 in the US. The Commission estimated the overall yearly cost of validating patents in the EU to be €193m.

The rapporteurs will lobby for slight amendments to the current proposals in order to reduce the cost of renewing unitary patent cover for small businesses, the European Parliament said. The negotiators will also try to secure "special reimbursement and an easier access to patent protection" for the costs incurred in submitting applications not in either English, French or German, it said.

A draft agreement (31-page / 182KB PDF) on a guiding framework for the establishment of a unified patent court was published by the Council of Ministers on the 24 November. The Parliament said that its rapporteur "will seek to ensure that the litigation system is efficient, by giving it a decentralised structure, clear procedural rules and judges selected for their competence".

According to the Council of Ministers' draft agreement, issues that have still to be resolved before a unified patent court can be established include precisely how it will be financed and the level of court fees that would apply. There is also still disagreement over what languages cases should be heard in during proceedings in the unified patents court. Plans to give individuals up to seven years to decide whether to bring cases to the unified patents court or to national courts have also still to be agreed upon.

An unspecified number of the 25 member states involved in establishing the new unitary patent system would have to ratify the draft agreement before it comes into force, but that number must include "the three states in which the highest number of European patents were in force in the year before the signature of the agreement," the Council of Ministers' draft said.

The Polish presidency of the Council of Ministers wants agreement on the unified patent court at a meeting in Warsaw on 22 December, according to the draft.

"In order to ensure legal certainty for patent holders and third parties, in particular alleged infringers and the workability of the system creating the European patent with unitary effect, the establishment of a unified patent litigation system is essential. It is therefore necessary that the ratification of the draft agreement takes place and Court becomes fully operational as soon as possible," it said.

In March the ECJ forced the European Commission and 25 EU member states involved in setting up the unitary patent system to revise their plans after stating that the plans at the time would be incompatible with EU law. In an opinion it stated that plans to create a single court system for patents issued through the EU would interpret EU law but operate outside of the EU courts system, leaving citizens without recourse to action through the EU courts.

Since then the EU Ministers have been working on proposals for a dispute system that works within the existing EU judicial structures.

The European Commission's unitary patent proposals must be supported by the Council of Ministers and the European Parliament in order to come into force.