Brussels, 14 December 2010
Patents: Commission opens the way for some Member States to move forward on a unitary patent
Today the European Commission presented a proposal opening the way for "enhanced cooperation" to create unitary patent protection in the EU. Such unitary patent protection would allow those Member States that so desired to agree to establish a patent, valid in all participating countries, that could be obtained with a single application. Obtaining a patent in Europe currently costs ten times more than one in the US because of national validation and translation costs. This situation discourages research, development and innovation, and undermines Europe's competitiveness. Commission proposals for a single EU patent have been under discussion for over a decade. But there has been stalemate in the Council over language rules. The Commission tried to unblock this with its June 2010 proposal on the EU Patent’s language requirements (see IP/10/870). But as the EU's Council of Ministers has not been able to agree unanimously on the EU patents' language requirements, the Commission has now tabled a proposal opening the way for "enhanced cooperation" to be authorised in this area, in accordance with the EU Treaties.
"Filing for patents in Europe is a costly and complicated affair, making it available only to those companies who have deep pockets," said Michel Barnier, the European Commissioner for Internal Market and Services. "The unacceptable reality is that on average innovators validate and protect their patents in only 5 of the EU's 27 Member States because of the high costs. European inventors can afford no further delay. This is why the Commission proposes that some Member States should be able to move ahead for a unitary patent protection, and I hope that over time all Member States will join this new system. In any case, companies will not be discriminated against and will be able to apply for an EU Patent under equal conditions, no matter what their countries of origin."
Existing situation for patents in Europe
The current European Patent system, particularly in terms of translation requirements, is very expensive and complex. The European Patent Office (EPO) – a body of the intergovernmental European Patent Organisation comprised of 38 countries (EU 27 + 11 other European countries) – examines patent applications and is responsible for granting a European Patent if the relevant conditions are met. But for the granted patent to be effective in a Member State, the inventor then has to request that it be validated at national level in every individual country where patent protection is sought. This process involves considerable additional translation and administrative costs.
A European Patent validated in only 13 Member States can cost up to €18 000, of which nearly €10 000 arises from translation fees alone. This has created a situation in which the cost of a European Patent is ten times greater than a US patent, which costs on average €1850. Because of the costs involved, most inventors only patent their invention in a very limited number of Member States.
The way forward on patents
Today's proposal follows a request from 12 Member States (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Sweden and the United Kingdom). It would be the second time that the "enhanced cooperation mechanism" were used (see IP/10/347) and would allow some Member States to move forward immediately, leaving the possibility to others to join at a later stage. The proposed decision to authorise enhanced cooperation on unitary patent protection needs to be approved by the EU's Council of Ministers by qualified majority, after the consent of the European Parliament. The Commission will come forward in 2011 with detailed proposals for implementing enhanced cooperation for unitary patent protection, including translation requirements.
Following the negotiations led by the Belgian Presidency of the EU's Council of Ministers, the detailed proposal on translation requirements would build on the existing language regime of the EPO at competitive costs. The unitary patent would be examined and granted in one of the existing official languages of the EPO - English, French or German.
In order to facilitate access to a unitary patent, it should be made available to all applicants in the EU on a non-discriminatory basis. Their inventions would be protected in all EU countries participating under the enhanced cooperation. Applicants in the EU whose language was not English, French or German would have the option to file applications in any other official language of the European Union. The costs for translation into one of the official languages of the EPO (to be chosen from English, French or German by the applicant when they file the application) would be eligible for compensation.
The Commission proposed a Regulation for a Community Patent in August 2000 (now referred to as the EU Patent under the Lisbon Treaty), after previous attempts to establish a unitary patent failed (the 1975 Luxembourg Convention on the Community Patent never entered into force). In December 2009, Member States unanimously adopted conclusions on an enhanced patent system in Europe (see IP/09/1880). These contained the key elements for bringing about a single EU Patent and establishing a new patent court in the EU. In June 2010, the Commission came forward with a Regulation on translation requirements for the EU Patent, but did not get the required unanimous support of the EU's Council of Ministers.
Under the EU Treaty and the Treaty on the Functioning of the EU, enhanced cooperation allows nine or more countries to move forward on in a particular area as a last resort if no agreement can be reached by the EU as a whole within a reasonable period. Other Member States can opt to join at any stage before or after enhanced cooperation has been launched.