Community Patent

From Academic Kids

The Community Patent, also known as the European Community Patent or EC patent, is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent throughout the European Union. The Community Patent should not be confused with European patents which are granted under the European Patent Convention. European patents, once granted, become a bundle of nationally-enforceable patents, in the designated states. This can be expensive for the patentee in that enforcement must be carried out through national courts in individual countries, and for a third party in that revocation cannot be accomplished centrally.

The Community Patent is intended to solve both of these problems, and also to provide a patent right that is consistent across Europe, thus fulfilling one of the key principles of the Internal Market in that the same market conditions should exist wherever in Europe trade is carried out - different patent rights in different countries presents a distortion of this principle.

In view of the difficulties in reaching an agreement on the community patent, other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement and the European Patent Litigation Agreement (EPLA).

Contents

Early proposal: Community Patent Convention

Work on a Community Patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.

The "Luxembourg Conference on the Community Patent" took place indeed in 1975 and the Convention for the European Patent for the common market, or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on December 15, 1975, by the 9 member states of the European Economic Community at that time. However the CPC never entered into force. It was not ratified by enough countries.

Fourteen years later, the Agreement relating to Community patents, done at Luxembourg on December 15, 1989, was an attempt to revive the project. This Agreement consisted in an amended version of the original Community Patent Convention. But this attempt failed again.

Nevertheless, as a minor consolation, a majority of member states of the EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the Strasbourg Convention.

Current debate: EU Regulation

Renewed efforts from the European Union have now resulted in a Community Patent Regulation, sometimes abbreviated as CPR. It provides that the patent application would be filed in only one language (English, French or German) and would be handled with and examined by the European Patent Office (this requires a change in the European Patent Convention, which is not that easy to obtain). The claims of the patent, once granted, would then have to be translated into all European Union languages. However, the patent will not be enforceable against an entity until they are provided with a copy of it in their own national language. The Community Patent Regulation will also establish a court holding exclusive jurisdiction to invalidate issued patents; thus, a Community Patent's validity will be the same in all EU member states. This court will be attached to the present European Court of Justice and Court of First Instance through use of provisions in the Treaty of Nice.

Discussion regarding the Community Patent had made clear progress in 2003 when a political agreement was reached on March 3, 2003. However, one year later in March 2004 under the Irish presidency, the Competitive Council failed to agree on the details of the Regulation. In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and, in the end proved insoluble.

Thus, the Community Patent looks unlikely to be implemented in the near future.

Reactions to the failure

After the council in March 2004, EU Commissioner Frits Bolkestein said

"The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010."

and further

"It is a mystery to me how Ministers at the so-called 'Competitiveness Council' can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come."

Jonathan Todd, Commission's Internal Market spokesman, declared:

"Normally, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. (...) It is extremely unfortunate that European industry’s competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests." [1] (http://aoi.cordis.lu/article.cfm?article=1310)

European Commission President Romano Prodi, asked to evaluate his five-year term, cites as his weak point the failure of many EU governments to implement the "Lisbon Agenda", agreed in 2001. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent" (Wall Street Journal, October 25, 2004).

Support for the Regulation

There is support for the Community Patent from various quarters. From the point of view of the European Commission the Community Patent is an essential step towards creating a level playing field for trade within the European Union. For smaller businesses, if the Community Patent achieves its aim of providing a relatively inexpensive way of obtaining patent protection across a wide trading area, then there is also support.

For larger businesses, however, other issues come into play, which have tended to dilute overall support. In general, these businesses recognise that the current European Patent system provides the best possible protection given the need to satisfy national sovereignty requirements such as regarding translation and enforcement. The Community Patent proposal was generally supported if it was to do away with both of these issues, but there was some concern about the level of competence of the proposed European Patent Court. A business would be reluctant to obtain a Europe-wide patent if it ran the risk of being revoked by an inexperienced judge. Also, the question of translations would not go away - unless the users of the system could see significant change in the position of some of the countries holding out for more of a patent specification to be translated on grant or before enforcement, it was understood that larger businesses (the bulk of the users of the patent system) would be unlikely to move away from the tried and tested European Patent.

See also

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