The EU (Community) Patent
Currently, the European Patent Office (EPO) is able to search, examine and grant patents in a single procedure for up to 36 European states under the European Patent Convention (EPC) . Once granted these are treated as separate national patents. Each of these national patents may be subject to national translation and validation requirements, and must be renewed individually in each country.
In August 2000 the European Commission published a proposal for a Community patent. A Community patent would, when granted, automatically be valid across all Member States of the European Union (then 15, now 27). It was agreed at a political level that only the claims of a Community patent would have to be translated into the languages of Member States. To renew, a single fee would be paid centrally. A Community patent court would have the powers to enforce or invalidate Community patents across the whole EU. Therefore a Community patent would help reduce translation costs as well as simplifying the procedures for obtaining and litigating patents in Europe. However, talks on the Community patent had stalled in 2004, chiefly over the number of translations and their legal effect.
Under the Slovenian and French EU Presidencies of 2008 new progress was made on the issue of languages and translations, with discussion of proposals that would require translations of patent claims into only three languages, supported by machine translations into other languages for public information. Progress was also made on the issues of fees/financing and worksharing arrangements. A document containing proposals for the Community patent was tabled by the Slovenian EU Presidency on 23 May 2008, followed by a progress report presented by the French Presidency to the EU Competitiveness Council on 1 December 2008.
Following further discussions at Council working group level, the Czech EU Presidency tabled revised proposals for a Community patent which were published on 25 June 2009.
The Swedish EU Presidency in the second half of 2009 tabled several documents with a view to reaching substantive agreement on key features of the Community patent. To help reach agreement, and to reflect changes to the decision-making process following implementation of the Lisbon Treaty, articles relating to languages, financing and worksharing were removed from revised proposals for an EU patent Regulation (under the Lisbon Treaty the Community no longer exists). At the Competitiveness Council on 4 December 2009, the Council agreed on a general approach regarding the proposed regulation. Language issues will now be transferred to a separate instrument (not yet tabled), and financing and worksharing will also be dealt with separately, possibly through amendments to the EPC. The key principles on fees, financing and worksharing are however addressed in paragraphs 36-49 of Council Conclusions , which were also agreed at the Competitiveness Council. Articles on litigation of EU patents have also been removed from the Regulation, as these will be dealt with via an international agreement on a European and EU Patent Court.
Key outstanding issues
The Slovenian presidency published a document on 28 February 2008, setting out details on a language solution, flexibility in the Community patent system and fee distribution. The language solution involves the translation of the claims only into English, French and German, with machine translations being used if it becomes necessary to translate into any other languages. A further document was tabled following a working group in March 2008 which gave more detailed proposals on translation arrangements based on computer translations. These remain the present proposals on translation requirements, and would deliver significant cost savings when compared to existing patent translation requirements in the EU. The Spanish and Belgian Presidencies are expected to continue working towards an agreeable language solution during 2010.
The French Presidency published a document on 3 October 2008 which discussed the distribution of annual renewal fees for the Community patent, including objectives for setting appropriate renewal fee levels. The draft Council Conclusions tabled for agreement in December 2009 build on these proposals, and set out the key principles for setting fees, and ensuring the system is financially stable. Detailed arrangements will be set out in separate legislation.
A working document concerning partnerships between patent offices in Europe under the Community patent was presented by the Czech Presidency in February 2009. This received broad support from Member States at the meeting of the Council Working Party on 17 February 2009. The Swedish Presidency opened by submitting a working document on a European standard for searches to be discussed at a subsequent working group. Following this the UK worked with Denmark and Finland to produce a paper setting out a range of options available under a worksharing system.
- Working document "Enhanced patent system in Europe - Council conclusions " - 17229/09, 7 December 2009
- Working document "Proposal for a Council Regulation on the Community patent - General approach " - 16113/09 ADD 1, 27 November 2009
- Working document "Distribution of Annual Renewal Fees from the Community Patent " - 13752/08, 3 October 2008
- Working document "Towards a Community patent - Translation arrangements and distribution of fees " - 8928/08, 28 April 2008
- Commission Communication "Enhancing the Patent System in Europe " - COM(2007) 165, 3 April 2007