EU Patent Stumbling Again?

The EU Patent. Three words (if you’ll accept the acronym) that have promised much, but delivered little, over the many years that have passed since the idea of a unitary European patent was first floated.

For those unversed in the twists and turns of patent law’s development within Europe, it is probably worth mentioning that the EU Patent differs significantly from the “European Patent” that is administered and granted under the European Patent Convention (EPC) by the European Patent Office (EPO) in Munich. The latter provides a system of centralised application, examination and grant of “European Patents”, but upon grant these fragment into national rights (imagine the mincing machine (right) with application in at the top and patents out at the side and you’ll get the idea). The EU Patent, on the other hand, has as its goal a single patent for all member states of the EU (i.e. the same model of protection adopted by the Community Trade Mark).

The EU’s (or, strictly speaking, European Economic Community’s (EEC), as it was known then) involvement in patent law began in the late 1950s with but one clear goal: providing for the unity of the Common Market. Its rationale was simple: the territorial nature of the patent grant, amongst other things, was seen as a potential stumbling block to free-trade within the EEC and therefore attention was directed to remedy this. Thus a move towards what Van Empel describes in his classic analysis of the European Patent Convention – The Granting of European Patents, (Sijthoff, Leyden, 1975) – as the creation of a “unitary and autonomous European Patent for the Common Market as such, governed by Community law proper and dealt with by Community Institutions” was begun.

However, this initial work on an EEC patent ground to terminal halt in 1965 due, primarily, to a lack of agreement on the advisability, or otherwise, of permitting external states (including the UK as a (then) non-EEC member) to participate in the process. In many respects this first EEC attempt at a Draft European Patent Law tried to do too much by attempting to provide both a Common Market strategy which included the possibility of association on the part of non-members, and an international patent for an unspecified number of countries, under one roof. Tensions rose: the French, for example, following President De Gaulle’s infamous grand ‘non’ to the UK’s proposed entry into the Common Market in 1963, were less than content with any proposal to open the doors of an EEC patent to third states that would inevitably include the UK. Thus, the tension created by “incompatible objectives” eventually resulted in a decision to divide European patent law into two parts, the Common Market themes being catered for under the Community Patent Convention, leaving the non-EEC elements to be dealt with under what became the EPC.

To cut a long story short(ish), the Council of Europe’s proposals for a harmonised system of application, examination and grant eventually came to fruition in 1970s when the EPC entered into force. The drive towards a unitary European Patent has, however, been a far bumpier ride.

And it's not getting any smoother.

Whilst the agreement reached in December 2009 [press release here: Agreement here: [.pdf alert], during the Swedish presidency of the EU, mapped out many of the main issues, a big one was left out. Therefore, in much the same way as the coffee creams get left until the end of a box of chocolates, it left the thorny question of language to be determined at a later date. [Update: for some reason this paragraph disappeared when this was first posted. Sorry]

Enter the Belgian presidency, cue a commitment to finish the process [which, notes Merpel, given the history, is a bold move indeed!], and round 2 has kicked off.

The Commission proposal (link to proposal: here [.pdf alert]. Link to press release accompanying proposal: here), as it currently stands, would require EU Patents to be “examined and granted in one of the official languages of the EPO – English, French or German. The granted patent will be published in this language which will be the authentic (i.e. legally binding) text. The publication will include translations of the claims into the other two EPO official languages.

"No further translations into other languages will be required from the patent proprietor except in the case of a legal dispute concerning the EU patent. In this case, the patent proprietor may be required to provide further translations at his or her own expense. For example, the proprietor may have to supply a copy of the patent into the language of an alleged infringer, or into the language of the court proceedings when this is different from the language of the patent.”

The proposal also sets out accompanying measures to be agreed “in order to make the patent system more accessible to innovators.” Prominent amongst these is the suggestion that “high quality machine translations of EU patents into all official languages of the EU should be made available.” In addition, where applicants come from EU Member States that have official languages outside of the official three, they “shall continue to have the possibility to file applications in their own language. The costs of the translation into the language of proceedings of the EPO will be eligible for additional compensation, beyond what is currently already in place for European patents, including financial and technical assistance for preparing these translations.”

However, Italy and Spain are widely reported as being the most doggedly opposed to the trilingual proposal, preferring either multi-lingual or monolingual regimes (the latter using English as the language of choice).

If reports such as that on as Euractive.com, which proclaims that “A final deal on the EU patent was still being held hostage by divergent national interests”, are to be believed, then it would appear that the dreaded language issue may, once again, derail the process. Belgium certainly has its hands full with this presidency.

Thanks to Lisa Peets (Covington & Burling LLP) for the pointing out the EurActive article.

Lost in translation: here, here and here