One step closer to a single EU-wide patent...

The BBC brings us the happy news that we are one step closer to a common EU-wide patent system. According to the report EU industry ministers on Friday in Brussels reached a deal to establish a European patent system with a single European Patent Court.

Sweden currently holds the EU presidency and a press release by the Swedish Ministry for Foreign Affairs proudly informs us:
"On 4 December, the Competitiveness Council - under the leadership of [Swedish] Minister for Trade Ewa Björling - reached a unanimous agreement on the general focus of the European patent regulation and Council conclusions on a common European Patent Court. This is a political breakthrough in these negotiations, which have been going on for a long time now, and is a significant step towards a final agreement. The next step will be for the European Parliament to take a position on the proposal. The European Court of Justice will also need to state its opinion on the new European Patent Court."
Not to be left out, the UK IPO in a press release of 4 December tells us that the UK Minister for Higher Education and Intellectual Property David Lammy helped "... to negotiate breakthrough on new European Patent". The IPKat is dutifully pleased that Mr Lammy contributed to this result. The UK IPO's press release quotes Mr Lammy as follows:

"If Europe is serious about our knowledge economy being key to economic recovery, then patent reform is the essential underpinning.

"This business-friendly deal will make patenting and innovating easier and more
affordable for British companies. In particular, innovative SMEs will have more
flexibility when choosing how to patent across Europe".

Yes, things could be so easy and hundred of millions of fees could be saved, if only there wasn't the old question of "language" and the extent of patent translation. According to the BBC report sadly no agreement was reached on this point and the European Commission has already warned that "the creation of the EU patent will depend on a solution to be found for the translation arrangements, which will be the subject of a separate regulation". But we won't let the European Commission spoil the fun.
So what do our patent experts think: how much closer to a European patent system are we? Anyone want to venture a guess when the first application under the new system will be filed? What should be done about the language question?
  • To read the "Conclusions on an enhanced patent system in Europe" of Friday's Competitiveness Council meeting, please click here.
  • To read the Financial Times' summary of the "breakthrough" deal, please click here.
One step closer to a single EU-wide patent... One step closer to a single EU-wide patent... Reviewed by Birgit Clark on Saturday, December 05, 2009 Rating: 5


  1. Indeed, without a solution to the language issue, there is no EU Patent. As in the envisaged legislative architecture, that language solution will have to be adopted with unanimity under Article 118(2) TFEU (TFEU = successor of the EC Treaty under the Lisbon Treaty), it may either take a very long time before a solution is adopted, or the solution may be something like the prohibitively expensive "solution" adopted in March 2003, i.e. a translation of the claims into all 23 EU languages (which may even be 2 languages more, as the draft regulation is intended to apply to the other EEA states as well).

    The only affordable solution that does not discriminate between the EU languages is NO translation until there is a dispute, in which case one translation into one official language of one state in which there is an alleged infringement should suffice. Machine translations would serve to provide non-binding information. However, getting that adopted with unanimity may be difficult.

    As to the Kat's question on when the first application under the new system will be filed: this will take forever. We not only need to await adoption of that translation regulation, but also entry into force of an EPC amendment (36 ratifications required) that will allow the EU to be designated as such in an EP application. In view of the large number of EP applications that are PCT applications, also the PCT needs to be amended to allow the EU to be designated in a PCT application; this needs 142 ratifications.

    Finally, entry into force of the EU Patent Regulation is also dependent on entry into force, for the entire EU, of the envisaged European patent litigation system (latest name: EEUPC). As some states may need to organize a referendum for this shift of national competencies to the European level, this may also take a very long time.

    Only when the language regulation has been adopted, and the EPC amendment has entered into force, and the EU has acceded to the EPC, and the litigation system has entered into force for the EU, the EU Patent Regulation can enter into force, and thereafter the first EP application can be filed which may lead to the grant of an EU Patent.

    Only because cats have multiple lifes, the IPKat may see this happening, but other beings with only 1 life may very well not see that day.

    Things could be so much easier if the legislative architecture simply builds the EU patent on the existing EP patent granted for the designations of the EU states, as then no EPC and PCT amendments are necessary, and no seperate translation regulation has to be adopted with unanimity, as with such a simple system the EU Patent Regulation, including provisions on languages, can be adopted with co-decision under Article 114 TFEU, as follows from ECJ decision C-350/92. However, politicians and civil servants would only use such a straightforward solution if they really want the EU Patent, which is apparently not the case.

  2. This very month, Sweden hands over the EU Presidency to Spain. What better Chairman than Spain, to solve the impasse on languages?

  3. @Anonymous: No, **GAME OVER** for rotating EU Presidency under the regime of Lisbon Treaty

  4. As to rotating presidency, I am afraid that the latest Anonymous is mistaken: the Lisbon Treaty only ended the rotating presidency of the European Council (comprising the heads of state or government, the European Council now having a fixed President, see Article 15 TEU) and the Foreign Affairs Council (comprising the 27 ministers of foreign affairs, the Foreign Affairs Council now being presided by the High Representative of the Union for Foreign Affairs and Security Policy, see Article 18(3) TEU).
    All other Council compositions (including the Competitiveness Council) are still subject to rotating presidency, see Article 16(9) TEU (Treaty on European Union, to be distinguished from the TFEU = Treaty on the Functioning of teh European Union).

  5. English and Spanish. All other languages (except Mandarin) are going to disappear anyway, according to the futurists.

  6. Talking about simplicity: How about abandoning the idea of a new validity court and use what is already there - the TBAs. They could take responsibility immediately. All it takes is to delete the 9 months time limit and to allow oppositions to be filed at any time. Admittedly, this would not resolve the infringement issue, but looking at the cases that have produced different results in different jurisdictions, it would seem that they turn on validity rather than infringement.

  7. The translation issues are to be expected, and this will most likely lead to either the whole process getting derailed again or to some unsatisfactory compromise.

    However, the real threat to industry in the EC comes from the possibility of bifurcation of infringement and validity cases (see para 20). This will be a disaster, as it is completely one-sided in favour of patentees. If I were sitting in a telecoms company right now I would step up my lobbying efforts, as this would amount to a trolls' charter to hold the industry to ransom using hopelessly invalid patents. Other industries will also be threatened, but not to the same extent.

    The idea that bifurcation should be allowed 'to permit flexibility' is ridiculous. If only German courts offer bifurcation, then all claimants will go straight to Germany, by-passing all other national courts. Meanwhile, the validity aspects will be punted off to the Central division which will inevitably be swamped with cases and be unable to hear them for years, giving patentees several years of being able to assert invalid patents without fear of having them revoked. However, if the courts in other countries do not want to lose all their business to Germany, they will have to adopt the bifurcation principle.

    The reason that no one else has adopted bifurcation is simply that it is woefully unfair to defendants, at least as long as the EPO continues to grant so many duff patents. Further, even if the EPO 'raised the bar' overnight, there would still be 20 years' worth of dross patents to work through the Unified system before bifurcation could even begin to be a defensible approach to enforcement.

  8. Hmm. Looking through the EU-document I find at the end this section:

    50. In order for the EU patent to become operational, to the extent necessary, amendments would
    be made to the European Patent Convention (EPC). The EU and its Member States should
    take any necessary measures and put them into force, including those for the accession of the
    EU to the EPC. Amendments to the EPC deemed necessary in this regard should not imply
    any revision of substantive patent law, not related to the creation of the EU patent."

    Is an amendment to the EPC really necessary? I thought EPC2000 was already prepared for it. Such an amendment would require a diplomatic conference and that would take time. Additionally non-EU members such as Turkey could find themselves with a lot of leverage here.

    It seems to me that the EU is planning to do some serious dictating to the EPO here.

  9. To Anonymous, who has criticism of "flexibility" on "bifurcation" of cases:

    Surely patentees already take cases to the German courts in an effort to get an infringement ruling in their favour. This is why the Dusseldorf court is so much more popular than the English High Court.

    The difference with the pan-European court structure is that it will operate with common procedural rules and have a common appeal court to keep errant divisions in check. And there seems to be a provision that will ban case splitting if it gets out of control in the way you suggest.

    I don't know how cases will be allocated in the new court, but presumably they will go to the domicile of the defendant, which would also help eliminate "forum shopping". Given the track record of the UK courts, high tech firms based in the UK might actually consider themselves lucky in this regard.

  10. Pete,
    The European Commission knows that not all local divisions will be equally good and efficient. So, to ensure that claimants still may get their cases dealt with in a manner that is as good and efficient as possible in a multi-lingual and multi-cultural EU system, it is deliberately made possible to go to any local division in whose territory an infringement takes place. So, there is deliberately no bar against forum shopping (apart from that direct revocation actions and declaratory judgment cases of non-infringement have to go to the central division). This means, indeed, also that companies trading throughout the EU can be sued in any local division. So, no luck for high tech firms based in the UK (or elsewhere in the EU).

  11. Pete, I submitted the comment on bifurcation yesterday.

    Yes, currently more patentees litigate in Germany than in the UK. The reason for this is that it is balanced in favour of patentees, which is not in the interests of justice. However, under the current European system the (direct) effects of this injustice are only limited to Germany. Under the proposed system they would be able to get pan-European injunction, which would allow the holder to assert an invalid patent across the whole of Europe in one fell swoop.

    The German bifurcated system is, in my opinion, structurally unfair to defendants; it is not merely a question of rogue application of the laws by errant divisions. There has to be some degree of symmetry between infringement and validity considerations, but this is absent under the bifurcated system. Patentees are able to adopt as broad a construction as possible at an infringement hearing without worrying about the consequences for the validity of the patent. In theory the patentee is then restricted in its preferred construction when the validity hearing comes around (if that ever happens), but this is not always the case in practice.

    Further, time is normally crucial in patent matters, and if a patentee can assert a patent which it knows is invalid to keep a competitor off the maket for, say, a couple of years until the validity case is heard, this is very unjust. Adopting a broad construction at the eventual expense of having a finding of nullity after two years of unwarranted monopoly is a very rational strategy for a patentee under the bifurcated system, but such a strategy would clearly be impossible under the non-bifurcated systems adopted by every other country (not sure about Austria).

    As stated in my comment above, and subject to rules on forum shopping, permitting the 'option' of bifurcation is likely to impose the this unjust system on Europe as a whole, either by directing all business to Germany, or by forcing the other countries' courts to adopt the system in order to remain competitive.

    I will be interested to see how the common procedual rules will develop, but the proposal that hearings will last for less than one day makes me apprehensive. Yes, UK trials are frequently excessively long (and correspondingly expensive), but continental patent trials are often unsatisfactory regarding evidence on obviousness. It is easy to represent evidence as being unrealistically strong on paper, but cross-examination acts a real disincentive to bend the truth. Without the possibility to cross-examine witnesses the quality of the decision making in cases will be diminished.

    Clearly there is a desire to keep the costs of litigation down, but this should not be at the expense of a just result. Where duplication of litigation costs is removed, there should be scope for a more expensive but more robust procedure, especially where the highest value cases are concerned. If you're dealing with a blockbuster drug patent with several years left to run, spending €1-2 million to ensure a just and equitable result without cutting corners on evidence is not disproportionate. Conversely, spending an equivalent amount on a widgets case is disproportionate, but there should be flexibility in the system to allow for this.


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