Intellectual Property: No breakthrough on Community patent at Competitiveness Council, November 2002

Ministers from across the EU Member States failed to agree on the outstanding issues concerning the proposal for a Community Patent at the Competitiveness Council on 14 November 2002 despite calls from the European Commission and European companies to reach a final agreement or risk further harming Europe's economy.

The jurisdictional arrangement for the community patent is proving to be the most controversial issue. Whilst some Member States favourthe establishment of an EU wide court in Luxembourg that would be responsible for all decisions others favour national courts. Germany and France are keen to maintain their national courts as are many of the smaller Member States such as Greece and Portugal who fear that they would be at a disadvantage if they had to rely on a centralised court. However the European Commission argues that a decentralised system could mean that companies would have to face legal action in 25 different courts.

The decision on the location of the courts must be taken by unanimity but the need for further work on the issue was all that the Member States could agree to on 14 November. Following the meeting the Danish Minister for Economic and Business Affairs, Bendt Bendtsen, who currently chairs the Competitiveness Council expressed his disappointment at the outcome, saying that the Community patent was 'an important initiative in realising the Lisbon goals' and therefore the issue would be on the agenda at the next meeting of the Combativeness Council on 26 November 2002. However many fear that a final agreement is now unlikely before Greece takes over the Presidency of the European Union in 2003.

Attempts to create a Community Patent date back to 1997 when the European Commission launched a discussion of the issue with the publication of a Green Paper. The European Commission hoped to create a single Community patent that would be valid throughout the European Union, thereby avoiding the misapprehension caused by the inability of the European Patent Office in Munich to issue such a patent and reducing the costs of application and translation. The idea was warmly welcomed by European companies. The Union of Industrial and Employers' Confederations of Europe (UNICE) issued a statement in August 2000 welcoming the proposal as a means of completing the internal market in intellectual property and saying:

'The costs and legal uncertainty generated by the lack of an EU integrated patent system are major hurdles standing in the way of innovation in Europe. This means that European innovators, and in particular SMEs, are at a competitive disadvantage as compared with US and Japanese companies ontheir own markets in terms of patenting costs. UNICE welcomes the Commission proposal to create a Community patent... whose aim is to create a cost-effective, centrally granted and uniformly litigated Community patent, can boost transformation of European research results and technological and scientific European know-how into commercial success stories'.

However the ongoing two year deadlock over the Community Patent plans is beginning to frustrate European companies who argue that further delay could exacerbate the downturn in Europe's economy as European companies seek to compete with Japanese and American counterparts who are able to obtain patents more easily and more cheaply. Ahead of the Competitiveness Council, UNICE wrote to the President's Council, Mr.Bendt, calling for an urgent solution to the problem. In the letter, Philippe de Buck, the union's Secretary General, said:

'The deadline set in Lisbon has already been missed and industry is greatly concerned about the fact that, since then, the dossier has been passed from one Presidency to another, with a progressive erosion of the proposal. This is a situation that is no longer tenable and we now urge the Competitiveness Council to assess the global package on the table. UNICE considers that political compromises have already placed the current package far away from the instrument that business needs if it wants to compete with its main trading counterparts. Further erosion is unacceptable to industry and a decision has now to be made on what to do with this dossier'.

The Community Patent was identified at the Lisbon European Council in March 2000 as one of the key tools that would enable the European Union to achieve the goals agreed at that summit of becoming the world's most competitive and knowledge based economy by 2010. The Community Patent is still a long way from fulfilling its role, indeed an editorial in the Financial Times suggests that perhaps the only way of achieving such success is by withdrawing the proposal and starting again.

Links:

Council of the European Union:
	14.11.02:	Press Release: Competitiveness Council [PRES/02/344]
Danish Presidency of EU:
	14.11.02:	Press Release: Community patent - Comments by President of the Competitiveness Council Danish Minister for Economic and Business Affairs Mr. Bendt Bendtsen
European Commission:
	DG Internal Market: Industrial Property - Community Patent
Union of Industrial and Employers' Confederations of Europe (UNICE):
	07.11.02:	Letter to the President of the Competitiveness Council concerning the Community Patent Proposal
	19.11.02:	Press Release: Community patent - make it simple and attractive
	18.08.00:	UNICE Statement on a Proposal for a Regulation Creating a Community Patent
European Sources Online: Financial Times:
	15.11.02:	Patently absurd
	14.11.02:	Brussels calls for progress on European patent
European Sources Online: In Focus:
	Moves towards a European Patent, January 2002

Helen Bower
Compiled: Friday, 15 November 2002

Ministers from across the EU Member States failed to agree on the outstanding issues concerning the proposal for a Community Patent at the Competitiveness Council on 14 November 2002 despite calls from the European Commission and European companies to reach a final agreement or risk further harming Europe's economy.