In April 2007, the European Commission outlined plans to replace national patent rules with a single EU-wide patent system. But is it too little too late? asks the Association for Competitive Technology’s Jonathan Zuck

Earlier this month, the European Commission released ‘Enhancing the patent system in Europe’, an outline of the steps it believes the EU needs to take to achieve a single EU-wide patent system. To say that it’s about time would be an understatement. The need for a single EU patent system has been discussed and debated for the past 20 years; yet, the European nations have, to date, been reluctant to make the changes needed to replace national systems with one over-arching EU practice.

Historically – and, perhaps, unsurprisingly – the problem has been driven by political considerations, with governments deadlocked over which languages to accept on patent applications and businesses fearful of the long delays needed to translate the claims into all 23 national languages. The increasing dissatisfaction in recent years about patent quality has clouded the issue even further.

After 20 years of differing reforms, sub-agreements and EU directives, the Commission is once again attempting to prompt the compromises needed for the single system to come into being. At its heart, this latest communication has great potential. Its aim is to reduce the prohibitive cost of patent filing across the 27 nations that now make up the European Union. It certainly needs to. Companies or individuals wishing to register a patent in 13 EU countries now pay 11 times more than a registrant attempting to file that same patent in the US, and 13 times more than a registrant attempting to file in Japan, according to the Commission. This impedes the ability of companies of all sizes to invest in innovation and to create new jobs, but is particularly problematic for small- and mediumsized enterprises (SMEs), which don’t have the deep pockets of big business.

Without an efficient and cost-effective patent system, how do EU countries expect to keep up with the innovation of emerging nations?

Similarly, 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 parties and causes lack of legal certainty. Making the Community patent a reality and improving the existing patent litigation system should, together with supporting measures, make the patent system more accessible and bring cost savings for all.

Working around the stalemate
It remains to be seen whether the Commission’s latest plan will be its last. EU governments and the European Parliament still need to approve the proposal before it can take effect; a process that can take years. Yet, at its heart the changes needed aren’t as complicated as some parties would make them seem. Ultimately, it’s a question of priority. Most businesses and governments agree that we need a Europe-wide system, yet they are not prepared to make the compromises needed to bring it into being. Clearly IP and innovation aren’t as high a priority in the EU as they should be.

This puts the EU in a dangerous position. For a long time, vested interests and national pride have impeded progress on the reform of the European patent system, putting economic growth in jeopardy. Without an efficient and cost-effective patent system, how do EU countries expect to keep up with the innovation of emerging nations such as China and India? If the EU spends the next 20 years squabbling over patent reform, how can governments expect to encourage innovation in their own businesses or attract innovation-rich businesses from overseas? EU nations also have to remember that patents aren’t just the domain of big business. One of the few equalisers in the marketplace for SMEs are IP Rights. If patents didn’t exist, it would be these smaller businesses that would suffer; after all, global corporations have enough money to ensure their market dominance by other means. That’s why it’s important for SMEs to have access to a reliable and cost-effective EU system, and that we create a unified European judiciary that resolves cross-border patent litigation in a consistent way.


This article first appeared in IP Review, issue 18

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