French bid to break EU patent deadlock attacked by industry

Date: 16/11/00

By Peter Chapman

PARIS has found a way to break the deadlock over plans to set up a user-friendly EU-wide patent system by the end of next year, but industry groups claim the proposed compromise is fatally flawed.

EU leaders set a December 2001 deadline for introducing a European patent at their Lisbon summit in March, but Single Market Commissioner Frits Bolkestein's proposals soon ran into resistance from member states including Germany, Italy and Finland.

They were incensed by plans for a new patents tribunal linked to the European Court of Justice, arguing that legal battles should be settled in national courts.

The row over this key plank of Bolkestein's blueprint had threatened to scupper hopes of an agreement to make the necessary changes to the EU treaty at next month's Union summit. But sources say the French presidency won the support of most member states this week for a compromise which, if approved in Nice, would put the tribunal idea on the backburner.

The emerging deal simply includes an 'enabling clause' which would allow member states to set up such a body later if there was unanimous support. "There is no doubt that this will go through now," said one EU source.

But the European employers federation UNICE, an enthusiastic supporter of the Bolkestein plan, is bitterly disappointed that member states will not give the go-ahead for the tribunal in Nice. It, like Bolkestein, believes such a body is needed to provide legal certainty and prevent a patchwork of differing interpretations of the rules in individual member states.

Patent expert Jérôme Chauvin said the French compromise would make it harder to get eventual agreement to set up a tribunal because the issue would no longer be part of the normal horse-trading between summiteers. "It might have been easier to agree the patent as part of a package, but now the positions are so divergent that we are very pessimistic," said Chauvin, who believes wrangling over the details will delay a final deal for months. "Member states had a golden opportunity. But I will now eat my hat if the Community patent is in place by the end of 2001," he said.

But a spokesman for Bolkestein insisted that the compromise was necessary to keep the patent plan alive, although he stressed that the Commissioner would not be satisfied until member states had finally endorsed the tribunal proposal. "If an enabling clause of this type were approved at Nice, which would allow the creation of a special court to deal with patent, this would be a major step forward," said the spokesman. "But obviously we do not want to count our chickens."

France's bid to break the deadlock came after Bolkestein rebuked member states for their apparent unwillingness to support his proposal. He insists the tribunal would not only provide legal certainty but would be also more cost-effective than the current Union patent regimes, under which firms face fees of up to € 30,000 for partial protection through the European Patent Office (EPO) in Munich.

Although the EPO can award patents which are recognised in all EU countries, these can be overturned by national courts in one member state while being accepted in another. "A centralised and specialised Community jurisdiction is essential to provide the legal certainty the Community patent requires," said Bolkestein after a meeting of internal market ministers in September. "The Community cannot afford to miss this chance. It needs an effective and workable Community patent now, not in ten years time."

Paris has found a way to break the deadlock over plans to set up a user-friendly EU-wide patent system by the end of 2001, but industry groups claim the proposed compromise is fatally flawed.