The European Parliament on Tuesday (10 December) endorsed the creation of a single European patent that its proponents believe will make simpler and cheaper the process of gaining cross-border protection.
The Parliament’s endorsement came the day after the EU’s member states had reached agreement on the patent. But its remit will not include Spain and Italy, which had objected to the patent’s language regime.
The history of the idea of a European patent has been so long and so unhappy – it was first aired at the creation of the European Economic Community in 1957 – that even the deal on an imperfect patent was hailed by representatives of the European Commission, the European Parliament and the Council of Ministers.
Michel Barnier, the European commissioner for the internal market, described the deal as “a historic decision that will stimulate innovation and growth”, while Neoklis Sylikiotis, who – as the industry minister of Cyprus, the country currently presiding over the Council of Ministers – secured member states’ approval on Monday, said that it would “help to revive the European economy”.
Benoît Battistelli, the president of the European Patent Office (EPO), described a unitary patent as “a major breakthrough” that creates “a truly supranational system for the protection of innovation in Europe”. “It combines,” he said, “the proven advantages of a centralised [filing] procedure for European patents with the advantages of centralised post-grant administration by the EPO”.
Jonathan Zuck, president of the Association for Competitive Technology, said that the new system would offer small and medium-sized entreprises (SMEs) “more exposure to national markets” and “standardise and harmonise patent law to give them legal certainty”.
However, the deal has been heavily criticised by one of its early architects (see below), by a minority of MEPs, and by representatives of the group often singled out as the biggest beneficiaries – SMEs. They variously questioned the transparency of the deal-
making process, the legal basis of the new court system, the removal of a national option for patentees, and the value to SMEs.
At present, inventors who want European-wide protection file applications with the EPO in three languages, and then validate the patent in each country, a process that may require translation into the local language. Each national court can make rulings on the patent, which can mean that the same product has different protection in different countries.
The new system allows an inventor to file for a patent in one language at the European Patent Office (EPO) and to gain protection across most of the EU. The effect would, the Commission believes, reduce the cost of gaining a patent across Europe from €36,000 to below €5,000. This would remain significantly higher than the figure in the US, where the estimated cost is €1,850.
The deal also creates a European-level court system whose rulings would be binding across the participating countries. This removes the possibility of seeking rulings restricted to one country.
The system is expected to come into force on 1 January 2014, though national ratification of the patent court could cause delays. The court itself will be spread across three locations, with its headquarters in Paris. A branch court in London will rule on life-science and pharmaceutical patents, and the one in Munich will decide on mechanical engineering patents.
Italy and Spain, the only two countries not to agree to a single patent system (because of the exclusion of Italian and Spanish from the system’s language regime), have asked the European Court of Justice (ECJ) to rule on the appropriateness of using the system of ‘enhanced co-operation’ to secure agreement for the patent system. Enhanced co-operation allows a group of EU member states to forge ahead with legislation when the 27 member states cannot reach unanimous agreement.
An advocate general of the ECJ on Tuesday (11 December) rejected their arguments, but his legal opinion is merely advisory. It is expected to be a few months before the ECJ makes a definitive ruling.
The Green group, the largest bloc among the 161 MEPs who opposed the package, focused on what it described as the “legally uncertain” nature of the system, and the placing of the Unified Patent Court outside the EU treaty. Swedish MEP Christian Engstrom, who drafted the group’s position on intellectual property rights, said that the proposal “hands control over European innovation policy to patent lawyers with vested interests, and not to the democratically elected legislators”.
Critics of the final deal include Jochen Pagenberg, a former president of the European Patent Lawyers Association who served for three years as an adviser to the European Commission on the dossier.
In May, he wrote to Herman Van Rompuy, the president of the European Council, expressing concern at what
he described as the “secretive” way in which the package began to be pushed through last year and arguing that “the Commission and the Council were no longer interested in the recommendations of its own experts”.
He reiterated his criticisms to European Voice, saying that the final stages of the process had been “highly undemocratic”.
He also criticised the removal of a national option for filing and litigation, arguing that patentees who do not need or cannot afford pan-EU patents should have an alternative.
A particular concern is the decision to phase out national courts. “They [EU decision-makers] want to substitute the very well established national courts and put in place a new court with no history and replace it with no time for testing”, he said, arguing that a seven-year transition period was inadequate.
Pachenberg, who has represented small and large firms, said that the removal of national courts “totally overlook[s] what SMEs want, which is efficiency and predictability”. SMEs file most applications for patents, he says, but only 8% of litigation involving SMEs is cross-border.
Similarly, Openforum Europe, representing parts of the information-technology industry, has warned that patent protection will become more complicated and expensive for small companies. Software is excluded from the patent legislation.
Management of the patent system
Supporters of the single patent argue that, as well as cutting costs, it will simplify the process of obtaining and defending a patent.
The manner in which the system emerged – and how it will be overseen – is not, however, simple.
The three parts of the package were signed under three EU procedures – co-decision, consultation, and an intergovernmental procedure – that have implications for oversight. The member states also made use of a relative novelty in EU law: the possibility of ‘enhanced co-operation’, which enables EU member states to adopt legislation against the objections of other states.
One element – a regulation creating a patent – was agreed between 25 member states and the European Parliament. The second element – a regulation on translation – was agreed by 25 countries, taking account of advice from the Parliament. The third element – the creation of a patent court system – was agreed between 26 countries.
The effect of the deal is that 25 of the EU’s 27 members (all but Italy and Spain) have enhanced the powers and responsibilities to an independent non-EU body, the 38-member European Patent Office. Twenty-six EU countries (the exception is Spain) have also created a new court – the Unified Patent Court – that will not be governed by EU law (and subject to the European Court of Justice) but by an intergovernmental agreement.
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