| Author (Person) | Thomson, Ian | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Publisher | ProQuest Information and Learning | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Title | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Details | 11.1.02 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Publication Date | 11/01/2002 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Content Type | News, Overview, Topic Guide | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Attempts by the Member States of the European Patent Organisation to revise the European Patent Convention are proving difficult. Limited progress was achieved at the 'Diplomatic Conference' held in Munich in November 2000, but much remains to be done in areas such as software and biotechnological inventions. Parallel to this is the European Union proposal to adopt a law to create a Community Patent. The Heads of State and Government of the European Union at the European Council in Lisbon in March 2000 set the end of 2001 as the date for the establishment of the Community Patent. Despite strenuous efforts by the Belgian EU Presidency during the autumn of 2001 to secure agreement the deadline was not met. Background Patents are concerned with the technical and functional aspects of products and processes (as opposed to a 'design' which relates to the visual appearance of products, and a 'trade mark', which identifies the products or services of a particular trader). A patent for an invention is granted by a government to the inventor, giving the inventor the right for a limited period to stop others from making, using or selling the invention without the permission of the inventor. When a patent is granted, the invention becomes the property of the inventor, which - like any other form of property or business asset - can be bought, sold, rented or hired. Patents are territorial rights; a UK Patent, for example, will only give the holder rights within the United Kingdom and rights to stop others from importing the patented products into the United Kingdom. The purpose of a patent is to help the inventor recoup the investment in research and production, while fostering technical innovation and avoiding research and development duplication. Further background information on patents can be found on the Patents page of the UK Patent Office. The formal definition of a patent by the World Intellectual Property Organisation is:
For many years there have been attempts to create a system whereby an inventor can apply for a single patent to cover 'Europe'. While the desirability of this is unquestioned in terms of encouraging innovation and competitiveness in Europe, and to reduce bureaucracy and costs involved in inventors having to apply for many individual patents across Europe, in practice it has proved extremely difficult to achieve. Commercial companies, research centres and universities want to secure their inventions through patents but have to cope with a patent system in Europe that is seen as complex and expensive. This is particularly striking for companies operating in the United States where the patent system is much less expensive and where a single patent automatically covers the whole market. This situation appears more and more inconsistent with a single European market and a single European currency. Two initiatives aimed at simplification of the patents system in Europe are currently in hand. The first is an ongoing intergovernmental approach relating to the European patent through the European Patent Organisation, while the second is European Union based aimed at the creation of a Community Patent. Many people when they hear of the European Patent Organisation think that it is already possible to submit a single application for a Europe-wide patent. However, this is not the case. The existing procedure was established by the European Patent Convention of 1973 (the Munich Convention). This is an international convention outside the framework of the European Union, although all EU Member States have signed the Convention, plus Switzerland, Cyprus, Liechtenstein, Monaco and Turkey. The EPC allows not for a single, unitary European patent, rather the 'bundling of national patents' through a centralised procedure through the European Patent Organisation(EPO), and its executive organ, the European Patent Office, operational since 1977. Thus, an inventor can apply for national patents in individual countries or apply for national patents using the centralised EPO procedure. The latter procedure is said to be advised if an inventor wants to protect an invention in three or more countries (Intellectual property laws of Europe (Wiley, 1995, p14)). For many years there have been attempts to revise the European Patent Convention. A 'Diplomatic Conference' was held in November 2000. A Press Release from the EPO summarised the aim of the November 2000 conference:
The European Patent Organisation was given the mandate to hold the conference, which was held from the 20-29 November 2000, by the first Intergovernmental Conference on the Reform of the European Patent System, Paris, 24-25.6.99. This conference had the objective of reforming the current system in three main areas:
A second Intergovernmental Conference took place in London on 16-17 October 2000. An optional Agreement signed by Denmark, Germany, Liechtenstein, Switzerland, the Netherlands, Sweden, Monaco and the UK was reached to cut costs. Ministers also took steps towards developing a protocol on post-grant litigation so that disputes about European patents can be resolved in the courts more quickly and consistently across Europe. Further information on the background, objectives, documentation and results of the Diplomatic Conference of November 2000 can be found on the EPO site, in particular the
A further 'Diplomatic Conference' is expected to take place in June 2002. Proposal for a Regulation on the Community Patent Parallel to the initiatives within the framework of the European Patent Organisation are activities specifically within the EU framework. In 1975 a Community Patent Convention (CPC or Luxembourg Convention) was adopted by the then EC Member States, not as a formal piece of EC legislation but as an agreement between the Member States. This was amended in 1989. The text of the Convention, as amended, is available. The aim of the CPC is to allow a uniformly valid EC patent to be created, with a uniform law on infringement. Essentially, however, the CPC has not yet come into force. The next major development at the EU level took place in 1997 with the publication by the European Commission of a Green Paper on the Community Patent and the European patent system (COM (1997)314 final) (Summary). This was a consultation document aiming to launch a discussion on the need to take new initiatives in this area. A separate Green Paper on Innovation (COM (1995)688 final) also called for the establishment of a Community Patent. Following consultation, the European Commission adopted in 1999 a Communication on the follow-up to the Green Paper (COM (1999)42 final). The aim of the Communication was to announce the various measures and new initiatives which the Commission was planning to take or propose in order to make the patent system attractive for promoting innovation in Europe. At the European Council in Lisbon in March 2000 the Heads of State and Government identified the Community Patent as an essential component of Europe's efforts to boost competitiveness and build a knowledge-based economy. The Presidency Conclusions state that the EU should
In July 2000 the European Commission adopted a proposal for a Council regulation on the Community Patent. It is this proposal which is currrently progressing through the EU's policy-making process. This proposal addresses questions relating to the controversial matters of the future role of national patent offices and their relationship to the European Patent Office, the language regime, and the establishment of a Community Patent jurisdiction. Linked to these issues is the desire to reduce costs for the adoption of a patent. It on these issues that current disagreements are centred. 52000PC0412 The full text, and associated Press Release, is also available on the European Commission: DG Internal Market website The existing and subsequent progress of the proposal through the EU policy-making process can be traced in:
In March 2001 the Economic and Social Committee adopted its Opinion, essentially supporting the Commission's proposal, stressing the urgency for inventors and for innovation to have cheap, accessible and legally secure patents in the EU. A Press Release summarising the Opinion is available. As of December 2001 the European Parliament had yet to adopt an opinion on the proposal. The Legislative Observatory predicted the lead EP Committee for the proposal, the Committee on Legal Affairs and the Internal Market, would adopt its report in January 2002 and the plenary session of February 2002 would adopt the EP's opinion. A draft report from the lead Committee's Rapporteur, Ana Palacio Vallelersundi, dated September 2001 is available The Belgian EU Presidency (July-December 2001) placed reaching agreement on the proposal for a Community Patent as one of its key sixteen priorities. Following intensive work by the Presidency during the autumn of 2001 the European Commission was hopeful that substantive progress would be made at the Internal Market Council on the 26 November 2001 (PRES/01/440). The Council held a long discussion on the different aspects of the draft Community Patent, in particular the language arrangements and the role of national patent offices in relation to the European Patent Office in Munich. Despite all efforts, it was not possible to reach a political agreement at this Council meeting. In these circumstances, the Presidency undertook to consider how best to continue the work so that agreement could be reached on the dossier as a whole in due course. Following this disappointment Internal Market Commissioner Frits Bolkestein expressed his frustration in a speech 'The Community Patent: Objectives of the Commission and present situation' at a conference in Liège on 29 November 2001 (SPEECH/01/597). Further information about the conference is also available, as is the final report. The question of the proposal (and the deadline of reaching agreement before the end of December 2001) came up at the European Council held at Laeken in December 2001. The Presidency Conclusions stated:
As a result of this 'instruction' the Internal Market Council held a special meeting in Brussels on 20 December 2001(PRES/01/489), but again were unsuccessful in reaching agreement on key details of the proposed Directive, despite a new compromise text having been tabled by the Belgian EU Presidency (a summary of the key points can be read in MEMO/01/451). The question of language for translation of a Community Patent remains one of the key stumbling blocks. The European Commission expressed its regret at the failure of the Council to reach a political agreement and stressed that 'We must have a concrete agreement in time for the Barcelona Summit' (the European Council to be held in Barcelona in March 2002 plans to review the progress of the goals laid down at the European Council in Lisbon in March 2000). Some of the detailed issues of contention can be gleaned from papers on the Community Patent proposal in the Council of the European Union's Register of documents. Documents which are 'not available' directly from the Register can be requested by emailing: access@consilium.eu.int Further background information on the Community Patent can be found in:
Further information within European Sources Online: European Sources Online: Topic Guide:
European Sources Online: In Focus:
Further information can be seen in these external links:
European Commission: US Delegation European Patent Office
United Kingdom: Department of Trade and Industry United Kingdom: The Patent Office
United Kingdom: House of Lords: Select Committee on the European Communities
World Intellectual Property Organisation (WIP0) International Federation of Intellectual Property Attorneys (FICPI)
Union of Industrial and Employers' Confederations of Europe (UNICE)
The EU Committee of the American Chamber of Commerce in Belgium
EuroLinux
International Chamber of Commerce Derwent Information Edward G Fiorito Ladas and Parry: Further and subsequent information on the subject of this week's In Focus can be found by an 'Advanced Search' in European Sources Online by inserting 'Patents', 'European patent', 'Community Patent' etc in the search box. Ian Thomson Analysis of the attempts by the Member States of the European Patent Organisation to revise the European Patent Convention and the European Commission's proposal to adopt a law establishing a Community Patent. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subject Categories | Internal Markets | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
