The European Commission has proposed the creation of a Community Patent to give inventors the option of obtaining a single patent legally valid throughout the European Union. The proposal would significantly lessen the burden on business and encourage innovation by making it cheaper to obtain a patent and by providing a clear legal framework in case of dispute. The Lisbon and Feira European Councils cited the creation of a Community Patent as an essential part of Europe's efforts to harness the results of research to new scientific and technological developments and so contribute to ensuring a competitive, knowledge-based economy in Europe. The Summits recommended that the Community Patent should be available by the end of 2001.
Internal Market Commissioner Frits Bolkestein said: "The creation of a Community
Patent is an essential part of Europe's efforts to reduce the cost burdens on
business and help ensure that research and technological and scientific innovation
can be successfully applied by industry and commerce. Often in the past Europe
has provided the research, but it is others who have used it to commercial advantage.
We need to turn that around. Europe's reputation for research should be matched
by a reputation for innovative, competitive product development. A single patent
will slash the costs of patent coverage while guaranteeing a high level of protection.
Such a Community Patent will provide an important competitive tool to European
industry and notably SMEs in the age of the new economy."
At present patents are awarded either on a national basis or through the European
Patent Office (EPO) in Munich, which grants so-called European Patents. These
are essentially a bundle of national patents. The EPO, established by the intergovernmental
European Patent Convention of 1973, offers a single application and granting
procedure and so saves the applicant the trouble of having to file with a series
of national patent offices. But each Member State may still require that, in
order to be legally valid in their territory, the European Patent must be translated
into their official languages. Moreover, in the case of disputes, it is national
courts that are competent so that, in principle, there can be 15 different legal
proceedings, with different procedural rules in every Member State and with
the risk of different outcomes. The costs of translation mean that it is currently
significantly more expensive to patent an invention in Europe than it is in
the US or Japan. When added to the potential inconvenience of working with a
variety of different legal systems in case of dispute, the current system is
a significant barrier to research, development and innovation.
Under the Commission's new proposal for a Council Regulation, Community Patents
would be issued by the European Patent Office. National and European Patents
would coexist with the Community Ppatent system, so that inventors would be
free to choose which type of patent protection best suited their needs.
Theis proposal would provide for a Community Patent system that is was both
affordable and legally certain.
Affordability
The table shows clearly the variation in costs of patenting in Europe compared
to the US and Japan:
Comparison of costs and fees (in euros) payable for obtaining patents
in the EU, the United States and in Japan:
|
Filing and search fees
|
Examination fees |
Grant fees |
Renewal fees |
Translation costs |
Agent's fees |
Total |
| EPC
(typical application, 8 Member States)
|
810+532 |
1 431 |
715 |
16 790 |
12 600 |
17 000 |
49 900 |
| US |
690 |
- |
1 210 |
2 730 |
n/a
|
5 700 |
10 330 |
| Japan |
210 |
1 100 |
850 |
5 840 |
n/a |
8 450 |
16 450 |
The cost of the current European pPatent is shown to be three to five times higher
than that of Japanese and US patents.
A patent application consists of a detailed description of the invention and
a set of claims, which defines the scope of the protection provided by the patent.
At present, a typical European Ppatent (to apply in eight Member States) costs
approximately 49,900 Euros, of which 12,600 (some 25 per cent) are accounted
for by translation costs. In the case of a European Patent to apply in all 15
Member States and requiring translation into all eleven EU official languages,
the translation costs go up to some 17,000 euros.
The proposal to create a Community Patent would reduce translation costs to
some 2,200 Euros by not requiring any translation beyond that already foreseen
in the Munich Convention for the granting of the patent (this implies that the
patent would be granted and published in one of the working languages of the
EPO English, French or German - and the claims (i.e. the part of the patent
which defines the scope of protection) would be translated into the other two).
In practice the universal language for patents is English and translations
are very rarely consulted. For example at the 'Institut National de la Proprieté
Industrielle', the French national institute of industrial property rights,
translations are consulted in only 2 per cent of cases.
Legal Certainty
Currently patent disputes (including those concerning European Patents) are
referred to national courts. The procedures may be different in every Member
State and potentially there can be 15 different interpretations of how the law
as laid down in the European Patent Convention applies in a particular case.
The Commission suggests that to deal with disputes related to the question
of infringements and validity of Community patents a new centralised Community
tribunal within the framework of the European Court of Justice should be set
up.
This would require an amendment to the Treaty, which the Commission has already
called for in March of this year in its position on the Intergovernmental Conference.
Discussions to this end are currently held within the Intergovernmental Conference
in the context of strengthening and reforming the Community judicial system.
The competence of the tribunal will be limited essentially to disputes concerning
infringement and/or validity of the Community patent. Other disputes such as
relating to contractual licensing or ownership of the patent will be handled
by national courts.
The proposal follows three decades of attempts to create a single Community
Patent. During this period the European Patent Convention of 1973, to which
all Member States (plus Switzerland, Monaco, Liechtenstein and Cyprus) are signatories,
established the intergovernmental European Patent Office in Munich and a single
procedure for granting patents. The 1975 Luxembourg Convention aimed take this
a stage further and create a Community Patent, but it was never fully ratified.
©
Verlag Dr. Otto Schmidt, Köln