Currently, in the European Union (EU), patent protection is provided in the form of European patents granted by the European Patent Office (EPO) or by national patents granted by Member States. After the grant of a European patent, validation must be obtained from Member States where protection is sought. So, despite a unitary procedure for granting a European patent through a single entity (the EPO), validation of such patent is still governed by the laws of each of the individual Member States. This system causes great legal uncertainty, many complications and, due to the multiple translations required for implementation in Member States, significantly higher costs.
Milestones Towards a Community Patent
For patent filers, an ideal European patent system would be one that grants a "community patent"—a single patent that, once granted, does not require further costly translation, and is automatically valid across all of Europe. The European Commission also believes in the same, and since 2000 has had numerous discussions on proposals for the adoption of a more cost effective approach to the translation of European Patents and the creation of a single Community Patent.
In keeping up with technological advancements, on December 3rd, 2003 the EPO instituted online filing of applications. Since January 2008, more than 50% of patent applications filed with the EPO are submited via online filing, making the application process much cheaper.
In 2007, the Commission adopted a Communication titled: "Enhancing the Patent System in Europe", which basically confirmed the Commission's commitment to creating a single Community patent.
By the end of 2009, the European Union Council reached conclusions on an "Enhanced Patent System for Europe" which aims to create an enhanced cooperation system that will enable a community patent. The language system for the expected community patent system would be based on the language system used by the EPO (English, French and German). Once granted, the anticipated community patent would be automatically valid throughout the territory the EU member states who participate in the enhanced cooperation system.
In 2010, the European Commission adopted the "Europe 2020 Strategy", with the theme of "Innovation Union" as a flagship initiative. The goal of "Innovation Union" is working towards a community patent for Europe as well as a unified, community patent court.
In another effort to make translations cheaper and faster, in December 2010 the EPO and Google entered into an agreement whereby the EPO will make use of Google's machine translation for translating patent information into the languages of its member states.
Negotiations on the Establishment of a Community Patent
However, these efforts have only slightly mitigated the high costs and complexities of the current patent system. As a result, in 2010 the Member States of the EU again held negotiations on the establishment of a community patent. The negotiations failed however, mainly because the Member States could not agree on a single language regime for the proposed new system. In particular, Spain and Italy complained that the major translations would be done in English, French and German.
Despite Spain and Italy's objections, on December 14th, 2010, 12 EU Member States requested the European Commission to submit a proposal to authorise an "Enhanced Cooperation" system in the area of creating a community patent. This proposal was later supported by 25 Member States. Only Italy and Spain refrained from requesting the use of an enhanced cooperation, stating that further negotiations were needed regarding the language issue.
An important signpost was passed when two major approvals were given in support of the Enhanced Cooperation: first, on the 15th of February 2011 by the European Parliament, and then on the 10th of March 2010 by the Council of the European Union.
Status of EPO Member States NOT Part of the EU
Once the Enhanced Cooperation is enacted, what happens to a patent once it is granted by the EPO? Under the enhanced cooperation, once a European Patent has been granted, such patent would automatically be valid in the 25 EU member states supporting the system.
Keep in mind, however, that the EPO includes 27 members of the EU and 11 more European countries (Albania, Switzerland, Croatia, Iceland, Liechtenstein, Monaco, Former Yugoslav Republic of Macedonia, Norway, San Marino, Turkey, and Serbia.).
Filers who want to validate their patents in the two EU member states who have not participated in the Enhanced Cooperation—Italy and Spain—will have to be designated and validated separately. In addition, as neither of these countries are signatories of the London Agreement (another effort to simply the translation issues), full translations of the patent into Spanish and Italian are still required.
As for the NON-EU member states, validation is still needed:
- Lichtenstein, Monaco and Switzerland has dispensed with translation requirements under the London Agreement;
- Croatia and Iceland require the description of the European patent be suplied in English;
- Croatia and Iceland require the claims be translated in Croatian and Icelandic, respectively.
- The remainder of Non-EU member states still required full translation of granted European patents.
Application Path after Enactment of Enhanced Cooperation
Draft Agreement on Creation of a Community Patent Court
In addition to the drive for Community Patent, another hotly debated issue is the need for a single European Patent Court, which would simplify the use and enforcement of a European Patent.
In June 2009, the Court of Justice of the European Union (CJEU) was asked to give an opinion on the compatibility of an anticipated agreement on the creation of the European and Community Patent Court. On the 8th of March 2011, the CJEU rendered its opinion, and found that the anticipated agreement is incompatible with current EU-law.
However, the European Commission and the EPO are confident that the opinion delivered by the CJEU will shed a light on further steps to be taken for the development of the project.
Conclusion
A community patent and a unified patent litigation system are on the horizon for Europe. What remains is overcoming some legal obstacles, which, with the necessary perseverance will surely be conquered.
On the 13th of April, one month after the EU Council authorized Enhanced Cooperation, the European Commission published two draft regulations on the community patent. This rapid response by the European Commission is a sure sign of their realization of the need and determination for a unified patent for Europe.
Resources
Unitary patent takes shape
http://www.epo.org/news-issues/news/2011/20110413a.html
Council authorises enhanced cooperation on creation of unitary patent protection http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/119732.pdf
~Background~ Towards a unitary patent protection in Europe http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/intm/119665.pdf
EPO welcomes breakthrough on unitary patent
http://www.epo.org/news-issues/news/2011/20110310.html
Green light for the unitary patent
http://www.eu2011.hu/news/green-light-unitary-patent
Council authorises enhanced cooperation on creation of unitary patent protection
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/119732.pdf
Court of Justice delivers opinion on European and EU patents Court draft agreement
http://www.epo.org/news-issues/news/2011/20110308a.html
Court of Justice of the European Union – Press release No 17/11
http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-03/cp110017en.pdf
European Union – Press Release
Patent Court: the Commission welcomes the delivery of the Court of Justice's opinion
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/269&format=HTML&aged=0&language=EN&guiLanguage=en
EPO Online filing
http://en.wikipedia.org/wiki/Epoline
The EPO and Google collaborate on machine translation
http://www.epo.org/news-issues/news/2010/20101130.html
Single EU patent moves closer to reality
http://www.ft.com/cms/s/0/0ad40b0a-02d7-11e0-a07e-00144feabdc0.html#axzz1KDI6dn7R
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