Patents in the EU

Patents are particularly important with regard to research and development, and the EU has been trying for a long time to unify the European patent system. On 13 December 2007, the revised version of the European Patent Convention, the EPC 2000, came into force. The EPC is a multilateral treaty providing a legal framework and unified procedure for the management of patents in all contracting states. It is the legal basis for the European Patent Organization and its executive organ, the European Patent Office (EPO).

The EPC 2000 is a big step towards a more flexible and user-friendly structure, while keeping in line with the latest developments in international patent law. With its high degree of procedural flexibility and legal compatibility, it is designed to be amended easily in the context of future developments in patent law and litigation.

As the European patent landscape is perpetually changing, so must the patent system. To this end, the EPO continuously adapts its procedures to ameliorate its efficiency. The latest rule changes are set to take effect on April 1, 2010. The changes, which aim at improving patent quality and accelerating patent examination, require applicants to elect subject matter and address claim objections at a much earlier stage of prosecution. They also reduce the time period in which divisional applications can be filed.

One further milestone in the development of the EU patent system may also have come at the Competitiveness Council on the 4th of December, 2009, where conclusions on an enhanced patent system in Europe were unanimously adopted. The package agreed upon covers major elements to bring about a single EU patent and to establish a new patent court in the EU, making it less expensive for businesses to protect innovative technologies and make litigation more accessible and predictable. A Council resolution adopted on the 1st of March, 2010, also addresses the application of intellectual property rights in the internal market, and asks the Commission to assess the advisability of introducing criminal penalties to combat counterfeiting and piracy.
 

EU patent regulation

A new approach for an EU patent regulation has been put forward. It was originally proposed by the Commission in 2000 under the Lisbon strategy, under the term Community patent, which was then changed into “EU patent” by the Lisbon treaty. But negotiations stalled in 2004. The Commission re-launched the process in 2007 with a Communication on “Enhancing the patent system in Europe”. It followed an extensive Commission-led consultation on how future action in patent policy could best take stakeholder’s needs into account, which it carried in 2006.

However, the creation of an EU patent depends on finding a solution for the translation arrangements, which will be dealt with in a separate regulation. An understanding has however already been reached on other areas. Renewal fees will be set at a level to facilitate European innovation and foster competitiveness. And the Council conclusions also tackle cooperation between patent offices, as the EU patent will involve partnerships between patent offices in Europe, in the hope to create synergies.

EU patent court

The Council agreement also encompasses the main features of a future patent court in the EU, which will unify procedures. That way, parties will be able to stop parallel litigating in several countries, which incurred high costs. On the European level, that could mean as much as 289 million euros saved each year for companies. The court will be organised in local and central chambers under a common appeal court. It will be established by an international treaty between the EU, its member states, and non-member states which are party to the European Patent Convention.

There are still some unresolved issues about the court regarding the unified patent litigation system, notably about the composition of the panels, the division of competences, the question of technical judges, or the language arrangements. After the political agreement, the Council now waits for a legal opinion on the new patent court from the European Court of Justice, which will not be available before summer 2010 at the earliest.