Pan-EU patent hopes revived

EU industry ministers will lock horns next week (22 November) over moves to create an EU-wide patent system.

They will focus mainly on the creation of a European Patent Judiciary (EPJ), a body subject to the European Court of Justice that would oversee the Union’s messy patent system.

The EPJ, suggested earlier this year by Charlie McCreevy, the internal market commissioner, would initially hear cases on patents granted by national administrations and the European Patent Office (EPO), a non-EU body based in Munich. The Commission hopes that once the EPJ is operational, member states will eventually agree on a harmonised community patent.

McCreevy laid out new options for patent litigation after member states rejected the European Patent Litigation Agreement, a solution developed by the EPO that would have created a pan-European court outside EU jurisdiction. The proposals were blocked by a number of member states led by France. Earlier this year, the European Parliament’s legal service advised that the EPLA system would, in any case, have breached community law.

Companies facing heavy translation and legal costs when registering and defending national and European patents supported the EPLA. "We supported EPLA because it made sense. Any future patent jurisdiction system has to improve the situation compared to where we are now. Otherwise it makes no sense," said Elias Konteas, adviser on intellectual property issues at employers’ lobby BusinessEurope.

"We welcome efforts to set a basis for patent jurisdiction in Europe. This would cover European patents that exist and in future also community patents. But there are issues that need to be further clarified," he said.

Under the suggested system, national courts would still rule on patent infringement cases, while the EPJ would focus on ‘invalidity’ cases where companies’ patent rights are contested. Konteas said that clear divides between national and centralised competences were needed. Clarification would also be needed on the handling of indirect ‘invalidity’ cases emerging from infringements.

According to an EU diplomat, member states have been discussing criteria for referring cases to national or central jurisdictions in the run-up to next week’s meeting. McCreevy’s suggestions, she said, had been strongly backed by the Portuguese presidency. "In a way, there have been good steps forward. Of course, there are still questions that need to be discussed further," she said.

Languages will continue to blight the debate despite the recent ratification by France of the EPO’s London Protocol, which allows companies to draft patents in French, English or German. Initially the protocol was strongly resisted by the French government, which believed that English would eventually become the default language for patents. The protocol is a voluntary system, but agreement from France, Germany and the UK was needed before it could enter into effect.

Although the issue of which languages should be used to draft patents has now been resolved, member states are likely to continue warring over the choice of languages for EPJ hearings. Speaking at a patents conference in Como, Italy, yesterday (14 November), Alfonso Gianni, Italy’s under-secretary of state for economic development, said that it was unfair to use only some languages to the detriment of others. "When there are legal problems we would like to be on the same level playing-field so that we can argue our point of view," he said.

Alison Brimelow, the newly appointed president of the European Patent Office, said that the recent ratification of the London Protocol was "encouraging". She said that development of a community patent could "take some time", expressing hope that it would materialise "sooner rather than later".

EU industry ministers will lock horns next week (22 November) over moves to create an EU-wide patent system.

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