EU To Press Ahead With Community Patent

by Ulrika Lomas, Tax-News.com, Brussels

12 July 2005

Although last week's European Parliament vote put paid to the EU's controversial software patent directive, and the Commission has accepted defeat, saying that it will not bring forward another version of the Directive, Brussels will now make another attempt to breathe life into its Community Patent.

Internal Market Commissioner Frits Bolkestein said: "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."

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 co-exist with the Community Patent system, so that inventors would be free to choose which type of patent protection best suited their needs.

According to Commission figures, at present, a typical European Patent (to apply in eight Member States) costs approximately £31,500, of which 25% of the cost relates to translation costs. To cover all 25 member states, translation costs for all EU official languages are enormous. By comparison, in the US, obtaining a patent costs approximately £6,500 and in Japan, £10,400. Under the new Community Patent, the patent need only be in English, French or German and a small part of it (defining the patent’s scope of protection) translated into each of the other two languages.

Proposals for a Community Patent have been in existence for many years, but have consistently failed to gain sufficient support. Most recently during the Irish presidency of the EU in March, 2004, an attempt to agree on a Community Patent failed after Spain and Germany were unable to resolve their differences on the issue of translation. Spain wants wrongly translated patent documents to receive more legal recognition than Germany is prepared to accept, a situation which the then Internal Market Commissioner, Frits Bolkestein described as "a sad state of affairs".

Commissioner Bolkestein said "I am disappointed that more than two years after the deadline set by the Lisbon European Council, and a whole year after the Council agreed the main principles, today's Council has still proved incapable of agreeing this crucially important initiative. European industry desperately needs access to pan-European patent protection at reasonable cost with minimum red-tape and maximum legal certainty.

"The Lisbon Summit itself identified the Community Patent as a vital measure for boosting Europe's competitiveness by encouraging innovation. The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010.

"It is a mystery to me how Ministers at the so-called "Competitiveness Council" can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year."

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 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.

Commissioner McCreevy also unveiled plans last week for the creation of a Europe-wide copyright license for online music use, saying: "The absence of pan-European copyright licenses makes it difficult for new European-based online services to take off. That is why we are proposing the creation of Europe-wide copyrights clearance."

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