McCreevy aims to end 40-year-old patent battle

The European Commission’s internal market department is drafting a two-step approach to achieving an EU-wide patent system, an issue that has divided member states for almost 40 years.

In a draft paper setting out options for the EU’s intellectual property protection, entitled ‘A patent strategy for Europe’, the Commission floats the possibility of a halfway-house, creating a European Patent Judiciary (EPJ) for litigation on European patents, which would be subject to the European Court of Justice (ECJ). At the outset, this would oversee patents granted by the European Patent Office (EPO), a non-EU body based in Munich.

The Commission’s hope is that after the EPJ has been set up EU?member states will agree on a community patent that would harmonise legal protection of patents across the EU and set official languages for drawing up patents. Heavy translation and legal costs make registering and defending patents expensive and cumbersome.

Previous attempts to agree on a single patent system for the EU have been blocked by national governments unable to agree on what the language regime should be and what courts should police the patents.

Last year, Charlie McCreevy, the internal market commissioner, proposed that the EU should sign up to the European Patent Litigation Agreement (EPLA), a solution developed by the EPO, which would have created a pan-European court outside EU jurisdiction. But his proposal was blocked by a group of member states led by France. In February, the European Parliament’s legal service ruled that the EPLA would breach EU law.

Three options are mooted in the Commission’s paper. The first sets out the EPLA system. The second would create a special EU jurisdiction governing both EPO patents and future EU patents. On the latter option, the Commission paper acknowledges that: "A number of member states, supported by some stakeholders, seem to have the view that a European-wide patent court established within the Community framework would not be workable." Previous proposals ran into opposition from Germany.

The third option, clearly the one favoured by the Commission, is the two-step approach.

"The Commission believes that, if there is adequate political will, the current differences between the member states can be overcome and an appropriate architecture for a unified and integrated Europe-wide patent jurisdiction could be established once serious negotiations are launched and sufficient momentum is found," the paper says.

Recognising "differences" between member states, the paper avoids discussion of the contentious issue of language regimes, which has been a sensitive matter for France, concentrating instead on legal options.

To avoid upsetting the French government, publication of the paper, which was planned for the end of March, has been postponed until after the first round of the French elections set for 22 April. McCreevy is expected to wait until after the second round of French elections (6 May) before launching a real debate.

"It’s a conflict of timing related to domestic political considerations," said Thomas Vigne, a partner at the Brussels office of law firm Clifford Chance, who is following the dossier. "It’s pretty clear they have their eye closely on the political situation in France. There won’t be anything dramatic until everything has been decided there."

According to Dutch Liberal MEP Toine Manders, a former patent lawyer, the EU could be ready under the two-step approach to move towards a community patent within five to ten years.

McCreevy’s spokesman Oliver Drewes said: "You can be sure we won’t abandon the idea of a community patent. It’s also quite clear that McCreevy said at the beginning of his mandate he won’t give a stuck dossier to his successor."

The European Commission’s internal market department is drafting a two-step approach to achieving an EU-wide patent system, an issue that has divided member states for almost 40 years.

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