Proposals For Single EU Patent Issued; Doubts About EU Patent Court Remain

Legislative proposals for a single European patent emerged from the European Commission this week. If approved by the European Parliament and Council, the measures will make patents granted in one country valid in all participating EU member states and drastically cut the cost of patent protection, the Commission said. Patent lawyers praised the proposals but said the issue of an EU-wide patent litigation court must be resolved first.

Under current law, inventors can seek protection either from national patent offices or, under the European Patent Convention, from the European Patent Office, the Commission said in its 13 April proposals for a regulation to create unitary patents [pdf] and for translation arrangements [pdf]. A patent awarded by the EPO must still be validated in every EU state where protection is sought, it said. The national validation process may require the patent owner to file a translation of the EPO grant in the national language, it said.

The translation requirements make the current system complex and expensive, the Commission said. The overall cost of validating the average European patent is around 12,500 euros if done in 13 countries, and over 32,000 euros if validated in the whole EU, it said. Under the proposal, the cost for a single European patent effective in the 25 participating countries – Spain and Italy have so far refused to join – will be 680 euros after a transitional period in which the rate will still be less than 2500 euros, it said.

The Commission has tried since 2007 to create a unitary patent system but translation issues have gotten in the way, it said. EU governments confirmed in December 2010 that “insurmountable difficulties existed,” prompting several countries to ask for “enhanced cooperation” on a single patent protection regime, it said. On 10 March, the Council of Minsters authorised the use of enhanced cooperation.

Translation Rule Proposals

The enhanced cooperation regime lets European patent holders apply for protection in the 25 participating nations at the EPO.

Patent applications can be submitted in any language but the EPO will continue to grant patents in its three official languages: English, French or German, the Commission said. Applicants residing in the EU who apply in a language other than those will be compensated for the cost of translation into one of the official languages, it said. Once protection is granted, the patent claims which define the scope of protection will be translated into the other two official EPO languages, it said.

For up to 12 years, until high-quality machine translation becomes available, unitary patents granted in French of German will have to be translated into English, and those granted in English translated into another official language, the Commission said.

“Good but Incomplete News”

The proposal is one of 12 “levers” of a Single Market Act, also announced 13 April, aimed at boosting growth and consumer confidence, the Commission said. Another issue is the creation of a pan-EU patent litigation system, an effort that stalled when the European Court of Justice (ECJ) ruled that a proposed agreement was incompatible with European law (IPW, European Policy, 12 March 2011). The unitary patent regime won’t work without a Europe-wide system for handling patent complaints, Internal Market and Services Commissioner Michel Barnier said at a 13 April press conference. The Commission is studying the decision and will offer a new proposal in May, he said.

Wednesday’s announcement is “good news but not complete news,” said Hogan Lovells patent litigator Daniel Brook. He commended the proposed translation rules for delaying translation until it is required for a patent dispute and for requiring courts to consider that an alleged infringer might have acted in good faith if a patent wasn’t accessible in his own language.

But everyone is waiting to hear the plans for an EU patent litigation regime, Brook said. No one will have confidence in a unitary patent until without knowing how it will be enforced, he said.

The intention to use the current EPO system to examine and grant unitary patents is welcome because applicants are already familiar with the procedure, said Kilburn & Strode LLP patent attorney Thomas Leonard. Being able to file patents in any language is also good, as are the less stringent translation requirements on grants that will allow applicants to seek protection in a large number of countries without incurring huge translation costs, he said.

But the translation issue is only one of several fundamental problems to be addressed, Leonard said. One is the absence of a European patent court, he said. In addition, the proposal restricts the ability of patent owners to transfer and licence EU-wide patent rights to the 25 participating countries, potentially making it hard for patent holders to exploit their inventions according to different local demands or regulatory requirements in individual EU countries, he said.

“Despite the fanfare, we are no closer to a workable system than we were before,” Leonard said. There won’t be further progress until “we hear how the Commission intends to address the litigation problem – and many doubt it can,” he said.