After nearly 30 years of discussion and countless failed attempts, the Slovenian government has once again raised the spectre of the community patent. But what would a pan-EU patent mean to businesses and can it really become a reality?

The subject of a single EU-wide patent has been a well-worn topic of conversation in the IP industry since the idea was first mooted 30 years ago and formally proposed by the European Commission (EC) in 2000. But although most nations accept that a community patent would be a far more attractive model than the present system, putting it into existence have so far proved an impossible task. This year, the Slovenian government, now holding the presidency of the EU, decided to give it one last go.

Can the Slovenian government possibly succeed where other, more powerful nations that have come before it have failed? It can, according to Slovenia’s economic minister, Andrej Vizjak. For him, it’s just ‘a question of finding consensus on a system which takes account the needs of industry.’ And yet, it was the impossible task of finding exactly that consensus that put paid to the first attempt to create a community patent in 1975.

Too many false starts?
Hopes were high when the EU created the early proposal for the pan-EU right in 1975 (the Community Patent Convention), but despite early enthusiasm, the Convention was never ratified and so never came into force. History repeated itself in 1989 and 2000: the member states of the EU just wouldn’t agree to cover translation costs or to give away powers of local jurisdiction.

The business world was, and still is, up in arms. A community patent right would save industry unnecessary administration, fees and litigation, they say. It will also help to reduce patent backlogs, help to harmonise systems and, finally, create legal certainty for patent rights holder in the EU. We ask four industry experts to outline their cases.


THE VIEW FROM BRUSSELS
European Commission (EC)

In July 2000, the European Commission proposed the creation of a community
patent so that inventors could obtain a right that was legally valid throughout the EU. In our view, a single community patent would considerably reduce the burden on businesses and the cost of obtaining a patent, thus making Europe more competitive and encouraging innovation.

A community patent system would automatically simplify the protection of inventions throughout Europe, since it would involve a single procedure for the issuing of patents by a division of the European Patent Office in Munich. This would result in a substantial reduction of patenting costs and greater legal certainty, thanks to a single, centralised system for dealing with disputes before a community patent court.

‘The benefits of a single Europe-wide patent are clear: they help improve risk management. Reduce costs and harmonise systems between EU member states.’
- Dr Biserka Strel, SIPO

The proposed system would also remove the obstacles associated with the European patent system, which has been in place since 1973. Under the current system, the European patent is a single entity only until the moment of its issue, when it is transformed into as many national patents as there are countries mentioned in the application. After issue, the European patent is then subject to national laws, and there is no common authority to harmonise case law at European level. Nevertheless, the aim of the community patent is not to replace the existing national systems and the European system but rather to coexist with them. Inventors would remain free to choose which patent protection would be most appropriate.


IT’S TIME FOR CHANGE
Dr Biskera Strel, director, Slovenian IP Office (SIPO)

The benefits of a single Europe-wide patent are clear: they help improve risk management, reduce costs and harmonise systems between EU member states. At present, businesses are forced to file multiple patents in the EU, which means that they also have to guard against the possibility of multiple litigation in more than one member state on the same patent issue – a costly endeavour.

Similarly, there are significant variations between different national court systems which a community patent would instantly remove. Uniform application and interpretation of substantive patent law would contribute to the legal security and certainty for all involved in patent proceedings, which would positively influence business decisions relating to investments and minimise ‘shopping’.

All member states would profit from a cost-efficient and legally secure European patent system. At present, companies need to pay fees (for translation or registration) in every EU country that they seek to register their IP Rights. In fact, on average it costs 11 times more to register a patent in 13 EU countries than it does to register a right in the US.  

That’s why SIPO is supporting the Lisbon Strategy for Growth and Jobs, as this will help to improve the way IP Rights issues are being handled and push for innovation throughout the EU. An important step, given that those issues, and related patents, are linked to innovation.


THE VIEW FROM BUSINESS
Jonathan Zuck, president, ACT

The Slovenian government’s decision to pick up the help of the community patent debate is a long awaited step in the right direction. Finally, the EU member states’ have decided to push for a community patent. It’s about time. Smalland medium-sized enterprises (SMEs) desperately need the simplicity, cost savings, and legal certainty that a community-wide patent system would deliver. We urge the member states to work together in order to deliver the much-needed improvements.

 It is generally accepted that businesses large and small are acutely unaware of the important role IP can play in driving business success. In fact, it is not uncommon for larger companies to be ineffective users of the IP Rights system as well.

SMEs and innovative entrepreneurs are the main drivers of growth and job creation in the EU today. Without obtainable and effective protection of their IP, Europe will continue to struggle to innovate and grow. If economic growth and innovation are moved to the front of the discussion, the important cultural issues that have dominated previous discussions can be solved. We call on the member states to recognise the realities of doing business in today’s world without borders.


THE ATTORNEY PERSPECTIVE
Trevor Thompson, partner, Thompson Gray LLP

The creation of a community patent would offer clear benefits to patent holders, including reduced patenting costs and increased legal certainty. Yet while the need for fuller integration and harmonisation of the European patent system is widely recognised, there remain considerable obstacles to its implementation.

One of the main hurdles for implementation of the community patent remains the issue of translation of the patent claims of the granted patent. The cost to the patent holder of preparing translations in the languages of all the member states would be unacceptable and a flexible system requiring the submission of translations in a limited number of languages has been proposed. Alternatively, an automated translation of the patent claims into the languages of all the member states could be performed centrally. As yet, there has been no agreement reached on which approach should be adopted.

The creation of a unified patent litigation system is being pursued alongside the community patent. An integrated judicial system in Europe would obviate the need for patent holders to enforce their patent rights in each of the national jurisdictions in which patent infringement is occurring. This would avoid the situation where divergent outcomes may result from corresponding proceedings in different national courts.

HAVE YOUR SAY
If you have an opinion you would like to share about the European patent, please email ipreview@cpaglobal.com.


This article was first published in IP Review, issue 22

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