EU Council Agrees Blueprint For Patent Litigation System

By David Cronin for Intellectual Property Watch
European Union governments on Thursday agreed the main components of a patent litigation system that will apply throughout the 27-country bloc.

EU ministers for industrial competitiveness gave their broad approval on 22 November to a blueprint for having a single judicial body to assess legal actions which contest the validity of a patent.

Under the plan, a specialised body linked to the European Court of Justice in Luxembourg would be established. However, this body would only be tasked with hearing cases on whether patents are valid or not.

Germany, the EU’s largest member state and biggest patent filer, has insisted that so-called invalidation cases should be treated separately from those relating to alleged infringements of a patent without the permission of a right holder. As a result, it is envisaged that infringement cases would be heard by national or regional courts in EU member states rather than by the new judicial body.

The idea of a ‘European patent judiciary’ was proposed by Charles McCreevy, the EU’s internal market commissioner, earlier this year. He advocated that this body should be responsible for examining complaints over patents issued both by national administrations and by the European Patent Office in Munich.

Yet while the principal ingredients of the litigation scheme have been agreed, discussions on some of its finer points are expected to continue into 2008.

The question of the languages in which complaints will be heard is viewed by EU diplomats as the largest outstanding issue.

During the first half of next year, a new accord on reducing the translation requirements for protecting an innovation comes into effect. Known as the London Agreement, it states that countries that recognise English, French or German as one of their official languages will no longer stipulate that a full description of a patent be translated into their most commonly-used language.

Spain and Italy have expressed concern that their national tongues could be discriminated against as a result of the litigation system. Alfonso Gianni, Italy’s undersecretary of state for economic development, said earlier this month that it would be unfair if some languages are used to the detriment of others.

But an EU official handling the patent litigation dossier said that Italy adopted a “constructive” stance to the language issue when it was debated in Brussels this week. Spain, however, is continuing to express reservations, the official added.

A group whose membership is mainly small and medium-sized computer companies as well as Microsoft welcomed how the plan would give specially trained judges responsibility for patent cases. But Jonathan Zuck, president of the Association for Competitive Technology, argued that there are “vague parts to it,” some of which could be interpreted as being more beneficial to larger firms, rather than smaller ones. Greater clarity is required, he added, on the rules for providing evidence.

A litigation scheme is viewed by officials as a stepping stone to a fully-fledged EU patent system. The idea of having such a system has been on the agenda of the then European Community since the 1970s.

In 2000, the European Commission put forward a proposal for creating an EU patent. Romano Prodi, then the Commission’s president, argued that the lack of a harmonised system was “blunting competitiveness”.

But the proposal has been deadlocked since it was last debated in any depth by EU governments in 2004.

João Tiago Silveira, the secretary of state for justice in Portugal – the current holder of the EU’s rotating presidency – suggested that harmonised rules on patents would reduce costs incurred by business.

A common patent system should be established “as soon as possible,” according to Silveira.

“We want to have quick progress,” he added. “It is not possible to determine precisely when member states will reach agreement. But I would be optimistic.”

David Cronin may be reached at info@ip-watch.ch.