European Union patent
|European patent law|
The European Union patent (EU patent), formally European patent with unitary effect, also known as the unitary patent, Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, is a proposed patent legislation in the European Union, which would allow individuals and companies to obtain a unitary patent throughout the European Union, with the exception of Croatia, Italy and Spain. During the European Council of 28–29 June 2012, agreement was reached on its provisions between 25 of the then 27 member states of the European Union. Italy and Spain had decided not to take part as a result of the proposed language scheme, which uses English, German and French at the exclusion of other languages. (Croatia subsequently acceded to the EU in July 2013.) The necessary EU legislation for enhanced co-operation was approved by the European Parliament on 11 December 2012, and entered into force in January 2013. The provisions will apply once the related Agreement on a Unified Patent Court, which was signed by all EU member states except Croatia, Poland and Spain, enters into force, on or after 1 January 2014.
The proposed EU patent is closely related, but different from the European patent, which is granted under the 38-state European Patent Convention. European patents, once granted, become a "bundle of nationally enforceable patents", in the states which are designated by the applicant. The EU patent would, once established, be designated after granting of the European patent, with validity in all participating countries. The system reduces translation requirements (by focusing on the three languages of the European patent: German, English and French), maintenance fees (with a single fee for the whole area) and provides for judicial procedures for a court with effect in all countries.
- 1 Legislative history
- 2 Legal basis and implementation
- 3 Costs
- 4 Earlier attempts
- 5 See also
- 6 References
- 7 Further reading
- 8 External links
In December 2010, the use of the enhanced co-operation procedure, under which Articles 326–334 of the Treaty on the Functioning of the European Union provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States. The use of this procedure has only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States.
In early 2011, the procedure leading to the enhanced co-operation was reported to be progressing. Twenty-five Member States had written to the European Commission requesting to participate, with just Spain and Italy remaining outside, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced co-operation procedure for unitary patent protection by a vote of 471 to 160. and on 10 March 2011 the Council gave their authorisation. Two days earlier, on 8 March 2011, the Court of Justice of the European Union had issued its opinion, stating that an integral part of the foreseen patent system – the creation of a European and Community Patent Court – would be incompatible with EU law. The same day, the Hungarian Presidency of the Council insisted that this opinion would not affect the enhanced co-operation procedure.
In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views. It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September. A draft of the agreement was issued on 11 November 2011. However, serious criticisms of the proposal remained mostly unresolved. A meeting of the Competitiveness Council on 5 December failed to agree on the final text. In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located, "with London, Munich and Paris the candidate cities."
The Polish Presidency, which aimed to produce a final text that could be initialled on 22 December, acknowledged on 16 December 2011 the failure to reach an agreement "on the question of the location of the seat of the central division." The Danish Presidency therefore inherited the issue. According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court. However, evidence presented to the UK House of Commons European Scrutiny Committee in February suggested that the position was more complicated. At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June. On 26 April, Herman van Rompuy, President of the European Council, wrote to members of the Council, saying "This important file has been discussed for many years and we are now very close to a final deal,.... This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council." The Competitiveness Council met on 30 May and failed to reach agreement.
A compromise agreement on the seat(s) of the unified court was eventually reached at the June European Council (28–29 June 2012), splitting the central division according to technology between Paris (the main seat), London and Munich. However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The modification was considered controversial and included the deletion of three key articles (6–8) of the legislation, seeking to reduce the competence of the European Court of Justice in patent litigation. On 9 July 2012, the Committee on Legal Affairs of the European Parliament debated the patent package following the decisions adopted by the General Council on 28–29 June 2012 in camera in the presence of MEP Bernhard Rapkay. A later press release by Rapkay quoted from a legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". A Europe-wide uniform protection of intellectual property would thus not exist with the consequence that the requirements of the corresponding EU treaty would not be met and that the European Court of Justice could therefore invalidate the legislation. By the end of 2012 a new compromise was reached between the European Parliament and the European Council, including a limited role for the European Court of Justice. The Unified Court will apply national patent laws, which the Court agreement makes the same in each country. The legislation for the enhanced co-operation mechanism was approved by the European Parliament on 11 December 2012 and the regulations were signed by the European Council and European Parliament officials on 18 December 2012.
On 30 May 2011, Italy and Spain challenged the Council's authorisation of the use of enhanced co-operation to introduce the trilingual (English, French, German) system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with the EU treaties. In January 2013, Advocate General Yves Bot delivered his recommendation that the court reject the complaint. Suggestions by the Advocate General are advisory only, but are generally followed by the court. The case was dismissed by the court in April 2013, however Spain launched two new challenges with the EUCJ in March 2013 against the regulations implementing the unitary patent package which have yet to be resolved. While Italy is not expected to join the latest cases, they could delay the introduction of the unitary patent.
Legal basis and implementation
Three instruments were proposed for the implementation of the EU patent:
- Regulation of the European Parliament and of the Council implementing enhanced co-operation in the area of the creation of unitary patent protection
- Council Regulation implementing enhanced co-operation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
- Agreement on a Unified Patent Court
European patent with unitary effect
The first two regulations were approved for the 25 participating states (all EU member states except Croatia (which subsequently acceded to the EU in July 2013), Italy, Spain) by the European Parliament on 11 December 2012 after originally having postponed its vote on the regulations on 2 July 2012 (which had been planned to take place 2 days later). The documents were formally adopted as regulation E.U. 1257 and 1260 of 2012 on 17 December 2012, and entered into force in January 2013. The provisions will apply once the accompanying Agreement on a Unified Patent Court enters into force. Due to a ruling by the Court of Justice of the European Union that the proposed Unified Patent Court (UPC) was not compatible with EU law, the court will be established by an intergovernmental treaty between the participating states outside the framework of the EU. The 25 contracting states of the EPC participating in the enhanced cooperation have therefore availed themselves of the provision laid out in Article 142(1) EPC.
In July 2013 the Italian Senate endorsed joining the unitary patent regulations, and Enzo Moavero Milanesi, Italy's Minister of European Affairs, informed the Italian Chamber of Deputies's EU Policy Committee that the government was now in favour of signing up. Michael Bordo, the Chairman of the Committee European of the Chamber of Deputies, has said that he hopes the lower house will express its position on the EU patent by June 2014.
Agreement on a Unified Patent Court
The Agreement on a Unified Patent Court was published by the Council of the European Union on 11 January 2013, and was signed on 19 February 2013 by 24 EU member states, including all states participating in the enhanced co-operation measures except Bulgaria and Poland, while Italy, which did not join the enhanced co-operation measures, did sign the UPC agreement. The agreement remained open to accession for all remaining EU member states, and Bulgaria signed the agreement on 5 March after finalising their internal procedures. Meanwhile, Poland decided to wait to see how the new patent system works before joining due to concerns that it would harm their economy. While Italy is not currently participating in the unitary patent regulations, signing the UPC agreement will allow the new court to handle European patents validated in Italy. Entry into force for the UPC will take place after 13 states (including Germany, France and the United Kingdom as the three states with the most patents in force) have ratified the Patent Court agreement, but not before 1 January 2014.
A common patent court called "Unified Patent Court" (UPC) is planned to be constituted, serving as the single court having exclusive jurisdiction in infringement and revocation proceedings involving European patents in the 25 participating states (both if individual countries are designated and for the EU patent). The court would have two divisions: a court of first instance and a court of appeal. The court would have its seat, registry and central division in Paris, with branches in all member states that wish to set up a division. The central division would have thematic branches in London (focusing on chemistry cases, including pharmaceuticals, i.e. International Patent Classification (IPC) classification C, and human necessities, i.e. IPC classification A) and Munich (mechanical engineering cases, i.e. IPC classification F) each expected to take about 30% of the case load.
Translation requirements as well as the requirement to pay yearly patent fees in all countries in which a European patent is designated, presently renders the European patent system costly in the European Union. In an impact assessment the European Commission estimated that the costs of obtaining a patent in all 27 EU countries would drop from over 32 000 euro (mainly due to translation costs) to 6 500 euro (for the combination of an EU, Spanish and Italian patent) due to introduction of the EU patent. Per capita costs of an EU patent were estimated at just 6 euro/million in the participating 25 countries (and 12 euro/million in the 27 EU countries for protection with an EU, Italian and Spanish patent).
How the EU Commission has presented the expected cost savings has however been sharply criticized as exaggerated and based on unrealistic assumptions. The EU Commission has notably considered the costs for validating a European patent in 27 countries while in reality only about 1% of all granted European patents are currently validated in all 27 contracting states. Based on more realistic assumptions, the cost savings are expected to be much lower than actually claimed by the Commission.
1970s and 1980s: proposed Community Patent Convention
Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.
The "Luxembourg Conference on the Community Patent" took place in 1975 and the Convention for the European Patent for the common market, or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on 15 December 1975, by the 9 member states of the European Economic Community at that time. However the CPC never entered into force. It was not ratified by enough countries.
Fourteen years later, the Agreement relating to Community patents was made at Luxembourg on 15 December 1989. It attempted to revive the CPC project, but also failed. This Agreement consisted of an amended version of the original Community Patent Convention. Twelve states signed the Agreement: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and United Kingdom. All of those states would need to have ratified the Agreement to cause it to enter into force, but only seven did so: Denmark, France, Germany, Greece, Luxembourg, the Netherlands, and United Kingdom.
Nevertheless, a majority of member states of the EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the Strasbourg Convention.
2000 to 2004: EU Regulation proposal
In 2000, renewed efforts from the European Union resulted in a Community Patent Regulation proposal, sometimes abbreviated as CPR. It provides that the patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. This proposal is aimed to achieve a considerable reduction in translation costs.
Nevertheless, additional translations could become necessary in legal proceedings against a suspected infringer. In such a situation, a suspected infringer who has been unable to consult the text of the patent in the official language of the Member State in which he is domiciled, is presumed, until proven otherwise, not to have knowingly infringed the patent. To protect a suspected infringer who, in such a situation, has not acted in a deliberate manner, it is provided that the proprietor of the patent will not be able to obtain damages in respect of the period prior to the translation of the patent being notified to the infringer.
The proposed Community Patent Regulation should also establish a court holding exclusive jurisdiction to invalidate issued patents; thus, a Community Patent's validity will be the same in all EU member states. This court will be attached to the present European Court of Justice and Court of First Instance through use of provisions in the Treaty of Nice.
Discussion regarding the Community patent had made clear progress in 2003 when a political agreement was reached on 3 March 2003. However, one year later in March 2004 under the Irish presidency, the Competitiveness Council failed to agree on the details of the Regulation. In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and in the end proved insoluble.
In view of the difficulties in reaching an agreement on the community patent, other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement, which entered into force on 1 May 2008—and which has reduced the number of countries requiring translation of European patents granted nowadays under the European Patent Convention, and the corresponding costs to obtain a European patent— and the European Patent Litigation Agreement (EPLA), a proposal that has now lapsed.
Reactions to the failure
After the council in March 2004, EU Commissioner Frits Bolkestein said that "The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010." Adding:
It is a mystery to me how Ministers at the so-called 'Competitiveness Council' can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come.
Jonathan Todd, Commission's Internal Market spokesman, declared:
Normally, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. (...) It is extremely unfortunate that European industry's competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests.
European Commission President Romano Prodi, asked to evaluate his five-year term, cites as his weak point the failure of many EU governments to implement the "Lisbon Agenda", agreed in 2001. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent".
Support for the Regulation
There is support for the Community patent from various quarters. From the point of view of the European Commission the Community Patent is an essential step towards creating a level playing field for trade within the European Union. For smaller businesses, if the Community patent achieves its aim of providing a relatively inexpensive way of obtaining patent protection across a wide trading area, then there is also support.
For larger businesses, however, other issues come into play, which have tended to dilute overall support. In general, these businesses recognise that the current European Patent system provides the best possible protection given the need to satisfy national sovereignty requirements such as regarding translation and enforcement. The Community Patent proposal was generally supported if it would do away with both of these issues, but there was some concern about the level of competence of the proposed European Patent Court. A business would be reluctant to obtain a Europe-wide patent if it ran the risk of being revoked by an inexperienced judge. Also, the question of translations would not go away – unless the users of the system could see significant change in the position of some of the countries holding out for more of a patent specification to be translated on grant or before enforcement, it was understood that larger businesses (the bulk of the users of the patent system) would be unlikely to move away from the tried and tested European Patent.
Since 2005: stalemate and new debate
Thus, in 2005, the Community patent looked unlikely to be implemented in the near future. However, on 16 January 2006 the European Commission "launched a public consultation on how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs." The Community patent was one of the issues the consultation focused on. More than 2500 replies were received. According to the European Commission, the consultation showed that there is widespread support for the Community patent but not at any cost, and "in particular not on the basis of the Common Political Approach reached by EU Ministers in 2003".
The proposal for an EU-wide patent is stuck in the mud. It is clear to me from discussions with member states that there is no consensus at present on how to improve the situation.
The European Commission released a white paper in April 2007 seeking to "improve the patent system in Europe and revitalise the debate on this issue." On 18 April 2007, at the European Patent Forum in Munich, Germany, Günter Verheugen, Vice-President of the European Commission, said that his proposal to support the European economy was "to have the London Agreement ratified by all member states, and to have a European patent judiciary set up, in order to achieve rapid implementation of the Community patent, which is indispensable". He further said that he believed this could be done within five years.
In October 2007, the Portuguese presidency of the Council of the European Union proposed an EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)". In November 2007, EU ministers were reported to have made some progress towards a community patent legal system, with "some specific results" expected in 2008.
In 2008, the idea of using machine translations to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent. Meanwhile, European Commissioner for Enterprise and Industry Günter Verheugen declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent.
Agreement in December 2009, and language issue
In December 2009, it was reported that the Swedish EU presidency had achieved a breakthrough in negotiations concerning the community patent. The breakthrough was reported to involve setting up a single patent court for the EU, however ministers conceded much work remained to be done before the community patent would become a reality.
According to the agreed plan, the EU would accede to the European Patent Convention as a contracting state, and patents granted by the European Patent Office will, when validated for the EU, have unitary effect in the territory of the European Union. On 10 November 2010, it was announced that no agreement had been reached and that, "in spite of the progress made, [the Competitiveness Council of the European Union had] fallen short of unanimity by a small margin," with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination, had "re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent."
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- "Italy and Spain block EU-wide patent talks", Euractiv.com, 11 November 2010. Consulted on 27 November 2010.
- Spanish Government Knocking Down Compromise On EU Patent Languages Regime, IPJur blog, 10 November 2010. Consulted on 27 November 2010.
- Hilty, Reto; Jaeger, Thomas; Lamping, Matthias; Ullrich, Hanns (17 October 2012). The Unitary Patent Package: Twelve Reasons for Concern. Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-12. doi:10.2139/ssrn.2169254. Retrieved 23 November 2012.
- Unitary patent on the European Patent Office web site
- Formal texts of the European Union Patent and status of adoption
- Regulation 1257/2012 Implementing Enhanced co-operation in the area of the creation of unitary patent protection (published 31 December 2012)
- Agreement on a Unified Patent Court (draft international treaty between the 25 states)
- Regulation 1260/2012 implementing enhanced co-operation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (published 31 December 2012)
- Rules of procedure, draft version 14 (published 31 January 2013)
- European Commission page on Patents ("Enhancing the patent system in Europe", "Community Patent", etc.)
- Amended Community Patent Convention (1989)
- Proposal for a Council Regulation on the Community patent (2000)
- Positions by various organisations