EuroPat: the Great Vision

So many people have sent the IPKat links to the European Commission's vision on improving the patent system for Europe that he can hardly bring himself to do the honourable thing and acknowledge them all individually. According to the Commission's press release (plus some slightly provocative comments from the IPKat -- which should not be taken as representing the views of all or any of the members of the blog team):

"Why a Communication on patents?

The Communication highlights that Europe's current patent system is considerably more expensive than the US and Japanese systems.

The IPKat says: and a Porsche is considerably more expensive than a Nissan ... but is price the only relevant consideration?

A Community patent would be far more attractive than models under the present system which is a bundle of national patents.

Right: a selection of attractive models - but not much brain

The IPKat says: it is more attractive for someone who is looking for Community-wide protection, but haven't many patent owners shown us how cost-effective it is, and generally how safe, to cherry-pick and just take out patent protection in the key jurisdictions? Is this not why most European patent applications don't designate so many available countries?

A European patent designating 13 countries is 11 times more expensive than a US patent and 13 times more expensive then a Japanese patent.

The IPKat says: at least you're getting plenty for your money. Look how valuable that European patent is going to be ...

The existing system of patent litigation in the EU, with the risk of multiple patent litigation in several countries on the same patent issue, leads to unnecessary costs for all the parties involved and causes lack of legal certainty.

The IPKat says: look on the bright side. Most patents are never infringed - and uncertainty is a great spur to negotiated consensual settlements without the need for all that messy infringement litigation.

The difficulties in making progress on patents and especially on the creation of a Community patent led the Commission to launch, in 2006, a broad consultation of all interested parties on the future patent system. The results leave no doubt on the urgent need for action to provide a simple, cost-effective and high-quality patent system in Europe.

The IPKat says: remembering how much better the present system is than the one we had before 1978, it's difficult to see why the need is so urgent.

Above right: consultations are great, but they can accentuate differences as well as points of agreement

The Communication is intended to draw operational conclusions from the stakeholder consultation ...

The IPKat says: this reads like Euro-speak. What it means is that the ordinary consumer, who actually finances the patent system by buying patented products and the use of patented processes, isn't being consulted.

... and to allow the Council to launch deliberations on patent reforms, in particular on the Community patent and jurisdictional arrangements. It addresses various supporting measures for an improved patent system, such as patent quality, knowledge transfer and enforcement issues.

The IPKat says: we all support patent quality, knowledge transfer and enforcement, so we're not going to have any disagreements, are we?

A separate and comprehensive Communication on Intellectual Property Rights (IPR) is planned for 2008, to complement the Patent Communication and address outstanding non-legislative and horizontal issues in all fields of intellectual property.

The Community patent

Many stakeholders support the Community patent as the approach which will yield most added value for European industry under the Lisbon strategy. However they criticise the Council's Common Political Approach adopted in 2003 because of high translation costs and excessive centralisation of the proposed jurisdictional system.

The IPKat says: high translation costs are what you have to pay for 'knowledge transfer', though.

The Commission believes that a truly competitive ...

The IPKat says: with what?

... and attractive Community patent can be achieved provided there is political will to do so.

The IPKat says: er, but this is what we're all afraid of. Political will should be a necessary condition for patent reform, not a sufficient condition.

Above right: Napoleon was a great man for exercising his political will and his legal legacy is undoubted. But acceptance of his Code was not achieved through consultation and consensus.

Concerns about an overly centralised jurisdiction should be taken into account in the work on the creation of an integrated EU-wide jurisdiction for patents.

The IPKat says: once we've dispensed with an overly centralised jurisdiction for patents, shouldn't we be looking around for other areas of over-centralisation?

On translation costs, the Commission will explore with Member States how to improve the language regime with a view to reducing translation costs while increasing legal certainty.

The IPKat says: I fully agree, but making English the sole language of the European patent system and requiring translation only of those patents that are litigated may not yet be a politically acceptable solution (... to the Welsh, says Merpel).

An integrated EU-wide jurisdictional system for patents

Recent discussions with Member States show polarised positions on patent jurisdiction arrangements with, on the one hand, Member States supporting the draft European Patent Litigation Agreement (EPLA) in the context of the European Patent Convention, and, on the other hand, Member States favouring the establishment of a specific Community jurisdiction for patent litigation on European and Community patents based on the EC Treaty.

The IPKat says: this makes it sound as though they're only arguing about the legal basis, but not about the substance.

Right: there are those who believe that a European patent court would have a somewhat hybrid appearance ...

Under these circumstances, the Commission believes that consensus could be built on the basis of an integrated approach which combines elements of both EPLA and a Community jurisdiction. The way forward could be to reflect on the creation of a unified and specialised patent judiciary, with competence for litigation on European patents and future Community patents. This system could be inspired by the EPLA model but could allow for integration in the Community jurisdiction. As a first step, work should concentrate on building consensus among Member States around principles on which consensus is emerging".

The IPKat says: so long as 'consensus' is not just a euphemism for 'compromise'...

Press release here; collection of relevant documents going back to 1997 here.
EuroPat: the Great Vision EuroPat: the Great Vision Reviewed by Jeremy on Friday, April 06, 2007 Rating: 5

1 comment:

  1. Well said the IPKat. From where I sit, users of the patent system are well served by what we already have in Europe. There may be some patent systems in the world that are broken but Europe ain't one of them. Competition for the litigation business between London, Duesseldorf and Munich is sharpening up all those venues. The freedom of the EPO to refine its view on patentability without dictatur from any cranky national court benefits Europe (at least now that the EPO has belatedly grasped that "the most dangerous thing you can do is to issue somebody with a patent"). If the Americans want to continue sending over specifications double the length of anybody else's, with X times as many claims, and then pay for them to be translated into every European language, while canny Asian Applicants write more compactly, and translate only for Germany, long may the present set up continue.


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