single Community patent has eluded Europes grasp for 30 years. The alternative is a European patent, granted by the European Patent Organisation (EPO) and consisting of a package of national patents from EPO member countries. However, the European patent requires patents to be filed in the national language of each country to be covered; and it is open to challenge in each of the national courts concerned. A Community patent, valid in 25 countries, would cost about €5,000, half the price of the average European Patent valid in eight countries. Furthermore, backed by a single jurisdiction, it would ensure legal certainty.
In March 2003, the Council of Ministers reached a common political approach on the proposed Community Patent Regulation. Patent applications could be made in one of the EPO working languages (English, French or German), whilst full translation, of just the patent claims, would only be required once the patent had been granted. A central Community Patent Court would have pan-European jurisdiction. At last it appeared that the single patent, underscored as a vital component of the Lisbon process to make the EU the most competitive economy in the world by 2010, was within reach.
But the Competitiveness Council of 11 March 2004 ended in stalemate. Normally, says the Commissions Internal Market spokesman Jonathan Todd, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. The main problem now is the time by which translations of the claims must be provided, on which Germany and Spain differ. There are also problems over what happens if a company innocently infringes a patent because of a mistranslation.
The impasse also relates to the loss of the work of national patent courts to the Community Patent Court. Both Commissioner Bolkestein and his spokesman have been outspoken in their disappointment. More than two years after the deadline set by the Lisbon European Council", said the Commissioner, the failure to agree on the Community patent undermines the credibility of the whole Lisbon process. 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.... It is extremely unfortunate, adds Todd, that European industrys competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests.
A further issue is that for the Community patent to be administered by the European Patent Office, the Munich Convention which created the EPO has to be amended. This is due to happen at a conference in November 2004, but is now in question. It would also have been helpful if agreement in the Council had come in time for the European Parliament to reach its opinion before the coming elections.
The Council of Ministers will now try again to resolve these issues. Possibly some flexibility will arise through the change of government in Spain, so Member States Ambassadors could move towards agreement in advance of the next Council meeting in May. That may, however, be optimistic.
J. Todd, European Commission,
Internal Market Spokesman
Tl. +32 2 299 4107
Fx. +32 2 299 4107