Out-Law / Your Daily Need-To-Know

The EU's Competitiveness Council last week failed to reach a final agreement on the long-awaited Community Patent, amid disagreement on how to treat patent infringements that may result from mistranslation.

The Community Patent is intended to make it cheaper and easier to protect new inventions in all EU Member States with a single procedure. The hope is that it will remove a competitive handicap suffered by Europe's innovators and stimulate investment in research and development.

At present, patents can either be granted through national patent offices, or by the European Patent Office (EPO). The EPO grants Europe-wide patents on the basis of a single application; but to be enforceable in the individual Member States the patent may still have to be translated into the language of the respective State.

Consequently, getting an EU-wide patent is far from cheap. The Commission last year estimated the cost to be in the region of €50,000 – five times more expensive than the cost of registering a patent in Japan or the US. It anticipates that a Community Patent would cost €25,000.

The establishment of a Community Patent system has been delayed several times. In fact, it was first proposed 30 years ago.

One reason for the delay was a failure to agree a suitable court system. But in March last year the Council of Ministers agreed upon the main principles and features of the jurisdictional system for the Community Patent, the language regime, costs, the role of national patent offices and the distribution of fees.

In February this year the Commission took matters further when it proposed two Council Decisions that would establish a Community Patent jurisdiction, under the aegis of the European Court of Justice, to allow the resolution of disputes within the future Community Patent system.

There are still several outstanding matters, which it was hoped would have been resolved at the Competitiveness Council meeting last week. But this was not to be.

The main sticking point this time appears to have been the question of how to treat infringements of patents which might arise as a result of mistranslations. In the absence of agreement, the Irish Presidency concluded that it would reflect on how to proceed.

Speaking after the Council, Commissioner Bolkestein expressed his frustration: "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."

He added:

"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."