EU patents ‘crucial’ to win science race

Date: 27/01/2000

DEVISE an EU-wide patent system which is cheap enough to use and we will back you all the way.

That has been the response from European businesses to Research Commissioner Philippe Busquin's declaration last week that setting up a genuine 'one-stop' shop for granting patents was the linchpin of his blueprint for giving the Union a US-beating science policy.

"The European research effort not only looks fragmented and insufficiently coordinated, but Europe's investments in research are also failing to keep pace with our competitors in America and Asia," warned the former science lecturer-turned-Commissioner who replaced his shamed predecessor Edith Cresson last autumn.

Typical of this fragmentation, said Busquin, was Europe's current patent regime. "It is important for research in Europe for the European patent to be started as soon as possible," he insisted, adding that a new low-cost scheme should be introduced which would provide 20 years of legal protection for inventions through one simple application to an EU patent body. Once granted, these patents would be automatically accepted throughout the Union.

The Belgian R&D chief's insistence on the need for such a system is the latest contribution to the current wave of soul searching in the Union over why its economy is still lagging behind that of the US.

The EU is now awash with ideas on how to bridge the yawning transatlantic invention gap as policy-makers from Lisbon to Helsinki begin to realise that while Europe is strangling its inventors with red tape, plans to create the next generation of American multinationals are being hatched in the garages of budding Californian entrepreneurs and the laboratories of Massachusetts Institute of Technology scientists.

Busquin's call for the introduction of a genuine Union-wide patent is music to the ears of industry - and small firms in particular - which have been demanding such a move for years.

Under the current system, companies have two options: they can either apply to any one of the EU's 15 member states individually for a patent, or lodge an application with the Munich-based European Patent Office (EPO).

Despite its name, the EPO does not in fact grant EU-wide patents. The agency - which is recognised by the Union's member states, Cyprus, Liechtenstein, Monaco and Switzerland - simply assesses applications instead of the national patent authority. Patents can then be granted for some, or all, EPO member countries but it is then up to each country concerned to recognise them and give them the same legal protection as that provided by national patents.

A key problem with this approach, claim experts, is the lack of legal certainty. Patents may be legally challenged and even overturned by national courts in one EPO member country, while being accepted in another.

Moreover, whichever route inventors decide to take, it costs a great deal of money. EU officials claim that the average cost of applying to the EPO for a patent is €30,000, plus the annual 'maintenance fees' which put the price beyond the budgets of many cash-strapped inventors.

Jerome Chauvin, patent expert with the EU employers' trade federation UNICE, says firms have grown weary over the last 25 years of grumbling about the need to replace this costly, bureaucratic system with a properly thought-out EU-wide alternative. While large firms have deep enough pockets to cope with the current set-up - although they too would benefit from an improved regime - the cost of registering with national patent offices or the European Patent Office has left many small firms and private individuals wondering if it is worth the effort.

The federation's concerns are shared by the small-business lobby group UEAPME. "Small companies have problems with access to legal protection of their inventions. The procedures are long and costly, and are totally inadequate to their needs," says legal expert Elena Vilar. "We are in favour of simplifying the system."

Ultimately, it is the responsibility of Internal Market Commissioner Frits Bolkestein - and not Busquin - to rise to this challenge. But fortunately for critics of the current system, the two men share the same views on the issue.

Patent reform also featured on the list of priorities which Bolkestein unveiled late last year. His single market officials are now close to finalising their proposals for legislation and are expected to unveil the fruits of their work before the Commission's summer recess.

They are acutely aware that if their plans are to have any chance of succeeding, they will have to devise a workable scheme which is likely win the support of EU governments and the European Parliament.

Patent-policy experts predict that the Commission will decide to go much further in its forthcoming proposals than did the failed efforts of the past - notably the 1975 convention on Community patents which was never ratified by member states.

"The 1975 convention was too costly. It required translation of patents into all EU languages," said UNICE's Chauvin. "If the Commission was just to repeat that, then we would not be interested."

Sources predict that the Commission will propose making English the language in which the new EU-wide patents are written. They concede, however, that Bolkestein's aides will need to have a workable compromise up their sleeves if this English-only option offends linguistic sensibilities in Paris, Berlin and elsewhere, while avoiding adding to patent costs by requiring that they be translated into the Union's 11 official languages.

Despite widespread support for the idea of genuine EU-wide patents in member states, diplomats acknowledge that the language issue could be a major stumbling block to hopes of getting agreement on a new system.

"I think there will be general support for the Community patent in the Council of ministers," predicted one British official, who nevertheless acknowledged that other governments could balk at the adoption of English as the EU patent's lingua franca.

Another key issue which has yet to be resolved is which legal body would oversee legal disputes over new Union-wide patents. Experts say the most likely formula would see the European Court of First Instance rather than national courts emerge as the EU's forum for handling such cases.

Another question mark concerns the body which would be charged with the day-to-day running of the scheme, including decisions on awarding the patents. Bolkestein's officials are expected to favour handing this responsibility to the EPO, on the grounds that it already has the technical expertise needed to fulfil this task.

Last, but not least, is the thorny issue of what experts call the "cost of progress" to member state authorities, amid predictions that national patent offices are likely to resist a move which would see their income cut once the EU system was up and running.

Even if a formula can be devised which everyone accepts, no one expects Europe to knock the US off its pedestal as the world's most successful innovator straight away.

Experts point out that cultural differences will also have to be overcome, as Europeans are just not as keen to register their inventions as the Americans, with the Commission's own figures showing that US firms apply to the EPO for just as many patents as do their European rivals.

But they insist that with a world-class patent system at its disposal, Europe could begin to close the gap.

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