A single Europe-wide patent scheme is a step nearer, after EU member states agreed the main elements, including a unified European patent court.
Intellectual property (IP) experts praised the agreement, announced on Friday by the Swedish presidency of the EU, but warned that the biggest obstacle to the scheme — who will pay for patent translation — remains unresolved.
"I am very pleased that we have finally seen a political breakthrough in these difficult negotiations that have gone on for so long," Swedish trade minister Ewa Björling said in a statement.
"I am proud that the [EU Competitiveness] Council has now sent a clear and unambiguous signal to Europe's innovative companies that have long been calling for an improved patent system. The EU patent will make it much easier and cheaper to protect innovations in the EU."
According to the statement, getting patent protection in 13 EU states costs 11 times as much as getting a patent in the US, so the agreed scheme's "limited translation requirements will mean considerable cost savings for the European business sector". However, the statement added that the translation issue will have to be solved in a second simultaneous regulation.
IP lawyer Struan Robertson, of Pinsent Masons, told ZDNet UK that the cost at present of getting a Europe-wide patent is "horrendous", so the single patent scheme was welcome. But he added that the |EU has been trying to organise a single patent scheme since 2000, and the translation issue would remain a major problem.
"They've been talking about doing this for many years, but the issue that's been the sticking point for all that time is translation," Robertson said. "This is yet another proposal that has no solution on translation."
Robertson noted that, by way of example, a British inventor who speaks only English would want their patent to be described in English. However, an Italian firm trying to establish whether their product infringes on that patent would need to do their own translation, adding to their costs.
"It's not an easy one to solve," Robertson said. "One suggestion has been that you publish in your own language and pay for translation at the point of dispute, but that's really just postponing the problem. A major critique of the US patent system is that there is relatively little scrutiny of patent applications before they are granted [so objections are often left] until litigation. It would be disappointing if we took a similar approach in Europe."
The language proposal will be "for the new commission" to handle, a spokesperson for enterprise and industry commissioner Günter Verheugen told ZDNet UK on Monday, adding that incoming internal market commissioner Michel Barnier would be in charge of the matter when he takes office at the end of January or beginning of February.
The European Court of Justice is also expected to give its opinion as to the legality of the establishment of the European and EU Patent Court (EEPC) at some point, but it is not yet clear when this will happen.
Talkback
Why don't they just have each one digitally stored with corresponding EU member state translations linked to one another, as for the bill id imagine that would come from the EU's main funding pot.
The author of this article has failed to discuss two fundamental aspects of the reform of the European patent law. Firstly, it will hopefully get rid of the ambiguity and the costs of lawyers having to pursue infringement cases in different jurisdictions. There has been a lot written on the misuse of patents through evergreening, and this will be of some comfort for lawyers pursuing these boring cases.
Secondly, the problem of the European Patent, in that it is an all-or-nothing right, and that it can be defeated across all jurisdictions of Europe, is not a trivial point. This was an example of where the author seemed to not have a clear understanding of the reform of the patent law in Europe. I think, personally, it is impossible to write sensibly on this in any case without reference to reform of competition law, but that's a different matter altogether.