EU Patent Advances: Parliament Could Vote In February, Court Location Still Up In Air

The European Parliament Legal Affairs Committee approval this week of a plan for a single patent for participating European Union members sets the stage for a February plenary vote in Parliament. But members’ inability to agree on where to locate the new unified patent litigation court means the Polish presidency won’t get to see finalisation of the process that will now head into 2012 under the guidance of Denmark.

The Legal Affairs Committee (JURI) on 20 December agreed to support a package negotiated and agreed on 1 December by the Parliament, Commission (the EU executive body) and Council (the governments). The JURI has the lead on this issue in Parliament.

The three-part package creates a patent system with automatic unitary protection for participating EU countries, and establishes a language regime wherein filing may be in any EU language at first but must later be translated into English, French or German (the three procedural languages of the European Patent Office in Munich). The third part of the package is to establish a unified litigation court, but at least three cities – London, Munich and Paris – are vying to be the host, according to sources.

Because agreement could not be reached on location this week, Poland, in the six-month rotating EU presidency, called off a conference scheduled for today in Warsaw, according to sources. Instead, the issue will be left to the Danish presidency, which begins on 1 January.

“Since the court forms an inseparable part of the parcel, however, and cannot be dealt separately, the Polish EU Presidency conceded that the dossier cannot be concluded until the end of its term,” said an observer. Still, some took the view in recent weeks that Poland had done more to move the EU patent concept along than most.

The location involves the seat of the “central division” of the litigation court, and will be responsible for second-instance validity decisions on unitary patents. At least some costs would be supported by the host country, EPO President Benoit Battistelli told journalists at a recent briefing in Brussels. The location should have highly qualified judges, as they will become European judges. “They will have two hats in the beginning,” he said.

“What we are creating is something very new,” he said of the court, as up to now, the European Court of Justice was only for conflicts between public institutions, not between private parties. Battistelli said the changes to an EU patent would create even more need for the EPO.

Hope is being held out that the full package will be up for approval at the parliamentary plenary session scheduled for 14 February, sources said. This, along with the Council approval, would put the new patent into effect. It is understood that no part of the package can go into effect until all parts are agreed, sources said. It is also said that any member who disagrees with the package could decide not to adopt it but it would still go into effect for the rest.

The new EU patent will be “substantially cheaper” than current ones, the Parliament said in a press release issued after the JURI approval. Costs could be about €680 euros compared with an average of €1,850 euros for a patent filed in the United States.

In the negotiations, Parliament added amendments aimed at helping small and medium-sized businesses take advantage of the new system, it said. The measures range “from stronger legal protection to full compensation of translation costs,” Parliament said. The body also obtained “an improvement in the rules on how patent offices share renewal fees, upon which the economic sustainability of the whole system lies.”

The current agreement involves 25 of the 27 EU countries, and was struck after a way was found to get around a disagreement over languages that had stalled the process for years. The legislation is being addressed under the so-called “enhanced cooperation procedure”, in which groups of EU members can integrate their policies even without the agreement of some other members.

Spain and Italy have steadfastly insisted that filings should be allowed in their languages too, and have chosen not to participate in the patent system to date. Both countries have challenged the process at the European Court of Justice, arguing it is discriminatory and will distort competition. Those countries could join the decision-making process at any time, Parliament said, adding: “This procedure was adopted to unblock the file, long stalled over language issues.”

Under current rules, the only way to obtain European-wide protection is to validate a patent in each EU member state, through the European Patent Office (EPO), which extends beyond the EU. The costs of doing this, especially related to translation into each country’s language, can make a European patent 10 times more expensive than a US one, Parliament said.

The unified patent court will further cut costs and “reduce current legal uncertainty due to differing national interpretations,” it said.

The Parliament release described the new application process this way: “Any inventor would be able to apply for an EU patent ensuring protection in all the 25 EU Member States concerned. Patents will be made available in English, French and German, but applications may be submitted in any EU language. Translation costs from a language other than the three official ones would be compensated.”

The EPO has spelled out the potential changes of the unitary patent system here.