EU To Present Harmonized Patent Regime Proposals

by Ulrika Lomas, for LawAndTax-News.com, Brussels

03 April 2007

Addressing an EU conference last week, Internal Market and Services Commissioner Charlie McCreevy gave a foretaste of his plans for a European Union patent regime, something that the Union has struggled towards for the last 20 years.

The Commissioner said that with multi-country European patents costing 11 times more than a US patent and 13 times more than a Japanese patent, the EU has no choice but to try and reduce the cost of patenting and improve the current litigation patchwork in the EU. A consultation in 2006, supported by the European Parliament, had shown strong support for a cost effective Community patent including sound litigation arrangements.

Mr McCreevy said that he had promised to make one attempt on the Community patent dossier, and that the Commission is due to adopt a Communication on possible ways forward this week.

'The approach we take in the Communication is, in my view, the only realistic one,' said the Commissioner. 'While our focus is on litigation issues, the Community patent has not been left aside. I have said that the Community patent and improvements to the current litigation system for European patents should not be mutually exclusive. Indeed our aim should be to ensure that they converge. If we can find a solution to the litigation issue, it should also be possible to resolve the Community patent issue by finding a consensus on translation arrangements.'

The Communication will propose the following principles as a foundation of a new jurisdictional structure:

• First, the patent jurisdiction should ensure an appropriate degree of proximity to the users and comprise a limited number of first instance chambers, together with a fully centralised appeal court. The chambers, which could make use of existing national structures, should form an integral part of the single jurisdictional system.
• Second, the jurisdiction would cover existing European and future Community patents. It should have competence for infringement and validity actions, as well as for related claims such as damages.
• Third, the appeal court and the first instance chambers should work under common rules of procedure based on best practices in the Member States.
• Fourth, the patent jurisdiction should comprise both legally and technically qualified judges who should enjoy full judicial independence.
• Finally, the patent jurisdiction must respect the European Court of Justice as the final arbiter in matters of EU law, including questions related to the validity of the future Community patent.

Mr McCreevy said that the Commission will work with the Council and Parliament to build consensus on the way forward: 'I look forward to a close co-operation with the German Presidency in the coming weeks and months in order to promote our patent approach. If broad consensus can be achieved, we will take the necessary steps for implementing the approach and the make necessary proposals. Time is running out to make out innovation policy in Europe fit for the future. If we don't act now, the future will be upon us and it will be too late. I sincerely hope that all involved will rise to the challenge.'

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