IPAN issue brief - no. 5
European patent reform –
a "European" Patent?
The 27 member states of the
European Union have different, albeit “harmonized”, Patent Laws, but all are
members of the European Patent Convention (EPC), so enabling Patents to be
obtained in each member state via the national Patent Office or via the European
Patent Office (EPO). The European Patent Organisation (which runs the EPO) is
not an EU body, so the Commission does not govern its operations, unlike the
case for Trademarks and Designs, where the “Office for Harmonisation in the
Internal Market (Trade Marks and Designs)” is an EU institution.
Patent protection in some EU
member states but not others could have a distorting effect on interstate trade,
and The European Commission has wanted to set up a “Community Patent” for
several decades. A convention was signed in 1973, but has never come into force.
It proposed that the EPO grant a single Patent (not a bundle of national patents
as currently) which would be effective throughout the EU.
Since 1983 there have been many
attempts to agree a Community Patent System, but these failed as member states
were not able to agree a language regime. The EPO operates in English, French
and German, but if the bundle of Patents it grants is to be effective,
translations into local languages were needed under the National Laws of most
member states. The cost was substantial, and though in May 2008 the London
Agreement (which has the effect of reducing the number of translations needed)
came into force, the cost of translation still induces many patentees to proceed
with patent protection in only a subset of the EU states.
A separate issue, but of
importance to certain industries, is that although a substantial level of
harmonization of national Patent laws has occurred, there are still differences
of approach between member states, particularly in the biotech and computer
implemented inventions areas. The Commission wishes to have a common approach
throughout the EU, but this is unlikely absent a Community Patent.
The EPO, even if it becomes the
granting authority for a Community Patent, has no jurisdiction with respect to
enforcement, which must still be dealt with via national courts. Differences in
approach could undermine the unitary effect intended for the Community Patent.
Since unification of the judicial systems of the EU member states is not an
early prospect, there are moves to unify the approach adopted by courts dealing
with Patents by way of a European Patent Litigation Agreement (EPLA). Under the
system currently envisaged there would be first instance courts based in
particular states or with regional responsibility for several states, which
could issue an injunction effective throughout all the states party to the EPLA.
Appeals from the first instance courts would be heard by a central appeal
Court.
The EPLA is not dependent on
there being a Community Patent, as if the EU countries (preferably but not
necessarily all of them) agreed, it could come into force, and there is no
reason why non-EU countries which belong to the EPC could not join.
The present costs associated with
securing a patent position in Europe and possibly enforcing it are substantial
and deter smaller industry from using the system, but even large users wish for
a simpler, speedier and less expensive system, and one less patchy in its
effects.
Work on the Community Patent and
EPLA has been vigorous in 2008, but until it is crowned with success, there is a
hidden cost to all in innovation, and the achievement of a common market in the
IP area is frustrated.
revised: jul
08
suggested links for further
reading:
page updated:24 Sep 2008 | 
