For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Wednesday, 10 November 2010

Belgians go into overdrive to secure acceptable compromise on EU patent

Will the Belgians break it?
The IPKat has learned, via EurActiv, that the European Union's Belgian Presidency has proposed a new compromise text which is designed to break the long-standing deadlock over patents in the European Union which, says this source, "could lead to an historic deal at an extraordinary Competitiveness Council next Wednesday" -- ie today. According to EurActiv,
"Moves to develop a single patenting system for the EU began in 2003 but progress has been hampered by linguistic, technical and legal difficulties [Let's not forget widespread indifference within some industrial sectors and deep suspicion within some professional quarters, says Merpel].

...  Companies often have to fight legal action in several European countries at once, and national courts regularly come to conflicting conclusions on identical cases. A single patent court would make litigation cheaper [agreed] and more predictable [not sure: the range of possible outcomes would be smaller, but not necessarily more predictable].

The Commission presented in July a proposal to end the deadlock over linguistic disputes. The EU commissioner in charge of the dossier, Michel Barnier, proposed to maintain English, French and German as official languages for an EU patent but to allow paid-for translations of patents filed in other EU languages. However, this is opposed by other member states, including Spain [as guardian of a vast Spanish-speaking diaspora] and Italy [as the home of some of the world's best-loved pastas?].

The Belgian Presidency has said overcoming legal and linguistic problems will be a top priority during its six months at the helm of the European Council. A number of compromise proposals have been circulated and five competitiveness Councils have been scheduled during the six-month presidency, which ends in December. The new proposal, which has been circulating among EU diplomats since 3 November, contains important steps forward compared to the previous compromise text tabled in October, which proved ineffective [says Merpel, they're only "important steps forward" if they are accepted. If not, then they too are ineffective]. This triggered the convening of a special Competitiveness Council [today], which follows an official and an informal Council that have already been held during the Belgian Presidency and precedes another two meetings scheduled for November and December. ...

If no solution is found at the upcoming meeting, ministers in charge of competitiveness matters will meet again on the patent issue on 26 November and 10 December [This sounds like a punishment for the ministers].

... The most relevant element seems to be the provision of no clear deadline for the end of a transitional period preceding the entry into force of a permanent regime, upon which English, French and German will become the three fully-fledged official languages for the EU patent [This raises an interesting question: why should an unacceptable solution become acceptable simply on the basis that there is no specific date for implementing it?]. During the transitional period, translations of EU patents should be available only in English and not in the other two official languages. This would reduce costs and make it easier for firms of other EU countries to benefit from the new system.

"As long as high quality machine translations are not available for EU patents, which are not granted in English, a translation into this language has to be provided by the applicant," reads the Belgian proposal.

The vagueness of the transitional period's duration, which some diplomatic sources estimate could be up to 15 years, is designed to please the countries which most strongly opposed the three-language system, namely Spain and Italy, and to a lesser extent Poland and Portugal.
In addition, the proposal on the table also looks at a so-called "review clause," which should launch a new debate to assess the situation at the end of the transitional period. This would increase the negotiating power of countries that oppose the trilingual system [How?].

Convergent diplomatic sources confirm that Poland and Italy support the idea of a review clause. Only Spain is maintaining a tough stance. A Commission official told EurActiv that "a review clause could possibly be part of a final compromise".

... If this proposal were to become part of the final agreement, Germany and France would temporarily lose the privilege of having patents translated into their own languages. They will, however, maintain the much more relevant privilege of keeping German and French as official legally binding languages for the new EU patent. This means that a patent filed in German or French, even during the transitional period, will be legally binding, despite being translated into English [!]. A patent filed into Italian, Portuguese or Greek would on the contrary not be legally binding. This has important legal and financial implications, especially for small and medium-sized enterprises (SMEs) operating in languages other than the official ones. They risk inadvertently finding themselves in breach of patent rules and then being held liable for damages.

The compromise text therefore proposes that in case of disputes, "the alleged infringer, before having been provided with a translation in his own language, may have acted in good faith and may have had no reason to know that he was infringing the patent" [This looks like a sensible provision. Does it apply only to damages? What about an account of profits?].

Special treatment in courts should also be envisaged for SMEs which lack the financial resources of multinational companies, suggests the text.

... The United Kingdom is also requested to make a small concession by the new compromise text put forward by the Belgians. During the transitional period, when a patent is filed in English, it must be translated into another EU official language chosen by the applicants and paid for by the system. "The translation would be for information purposes only," underlines the Belgian compromise text. This temporary arrangement is considered "extremely useful to improve the quality of machine translations," since it could be used "to train the translation engines," reads the text. ..".
The IPKat is all agog to discover what comes next.

Deadlocks here
Dreadlocks here

Thank you, Lisa Peets (Covington & Burling), for providing this helpful link.

9 comments:

Anonymous said...

Having a look at the proposal itself, it seems that this press release is slightly wrong. During the transitional period, French- and German-language EU patents will have to be translated into English (just like the current arrangement in some London Agreement countries). It isn't so that "Germany and France would temporarily lose the privilege of having patents translated into their own languages", since there isn't such a privilege in the first place, neither before, nor during or after the transitional period. The claims will have to be translated, since the EU patent will still be an EP patent and the EPC requests so.

But, all in all, it seems like the Commission and the Belgian presidency have cornered Spain. It remains to be seen whether the Spanish delegation will let it go, or whether they'll still scuttle this proposal, opening the way to a reinforced cooperation of the other countries that'll be even more detrimental to their interests, since they'll be left out of the decision-making, just as they were out in 1973 when the EPC settled upon English, German and French as official languages of the EPO.

Anonymous said...

My suggestion to the Spanish authorities would be to resist the temptation to support the national patent industry by maintaining the requirement for translations and instead devote resources to aiding the qualification of their nationals as EPAs to maintain an international presence in the market.

See here

Anonymous said...

My suggestion to the Spanish authorities would be to resist the temptation to support the national patent industry by maintaining the requirement for translations and instead devote resources to aiding the qualification of their nationals as EPAs to maintain an international presence in the market.

Hear, hear! Unfortunately, since in J 18/99 Spanish "abogados" gained the right to represent before the EPO, even though they aren't allowed to act as professional representatives before the Spanish PTO, there's little incentive for any Spanish IP firm to invest much in preparing their "technical advisors" for the EQE.

This is even more galling since in Spain any person with a (Spanish) law degree who pays the professional fees has been allowed to call himself an "abogado", since there isn't -yet- any exam or additional qualification or experience required (a bar exam is going to be introduced, for the first time, in 2011).

Anonymous said...

2003? I thought that moves to develop a single patenting system for the EU began in about 1962?

Anonymous said...

Well, it seems the Belgian presidency's attempt has failed to obtain unanimity, and the Belgian minister van Quickenborne pretty unambiguously blames Spain for it. According to him: "Tonight, 26 out of 27 countries were ready to negotiate. However, one delegation had no interest in negotiating, or even a mandate to do so."

Kurt said...

Why on earth should German patents be translated to English (but not vice-versa)? I thought German was the working language of the EPO? If you translate to English you also have to translate all English language patents to German and French. All of the three are working language of the EU and official languages of the EPO. It is time to crack down on the anglosaxification of our legal environment. Anglosaxification means selling out Europe to the United States, aka one-stop-shop for Mr. Kissinger. It is all about the wilful conspiracy of the European Union against the German dominance over patenting in Europe, driven by anglo saxons hate read and Brits like Alison Brimelow who treated German like a second class language of the EPO.

Oh, and by the way, Mr. Quickenborne German and French are also officiel languages of Belgium! He behaves like national language diversity traitor in the EU patent discussions.

Anonymous said...

Kurt, your comments on the language issue demonstrate why the EU patent will never come to pass. The users of the patent system, i.e. industry, have no interest in the language issue other than being able to understand what's out there. In the international market, the common language is english, like it or not. Accordingly, translating all patents into English does make sense, even if it offends the sensibilities of some.

Anonymous said...

Good comment Kurt, but why did you make it in English?

MaxDrei said...

Perhaps Kurt is just pretending to be German. Must not jump to conclusions. Bloggers have been known to be disingenuous. And think about cars on the Autobahn in Germany. Those with German plates are not necessarily driven by Germans and those with UK numberplates are not necessarily being driven by Brits.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':