Brussels, 13 April 2011
Commission proposes unitary patent protection to boost research and innovation
As part of the Single Market Act presented today (see IP/11/469), the European Commission has tabled today a package of two legislative proposals, under enhanced cooperation, that will allow any company or individual to protect their inventions through a single European patent which is valid in 25 Member States. This will radically reduce, by up to 80%, translation and related costs for obtaining patent protection in the EU. The proposed regulations lay down the terms and conditions for obtaining unitary patent protection, its legal effects and the applicable translation arrangements. The draft regulations will now pass to the Council and the European Parliament for consideration. The Commission hopes Spain and Italy, who are not yet among the participants, will join the enhanced cooperation.
"The purpose of unitary patent protection is to make innovation cheaper and easier for businesses and inventors everywhere in Europe," said Internal Market and Services Commissioner Michel Barnier. "It will mean a big reduction in terms of costs and red tape, and provide a stimulus for European innovation. It will be accessible for all companies in the EU, no matter where they are based. I continue to hope that, in time, all Member States will choose to participate in this enhanced cooperation. It is my deeply held conviction there is no sustainable economic growth without innovation. And no innovation without efficient intellectual property protection".
Current situation for patents in Europe
The current European patent system, in particular in the phase after granting a patent, is very expensive and complex. This is widely recognised as a hindrance to innovation in Europe. 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 European patents if the relevant conditions are met. However for a granted patent to be effective in a Member State, the inventor has to request validation in each country where patent protection is sought. This process involves considerable translation and administrative costs, reaching approximately €32 000 when patent protection is sought in the EU27, of which €23 000 arises from translation fees alone. In total, obtaining patent protection in 27 Member States, including the procedural costs, could reach € 36 000 today. In comparison, a US patent costs €1 850 on average.
Furthermore, the maintenance of patents requires the payment of annual renewal fees country by country and a transfer of the patent or a licensing agreement to use the patented invention has to be registered the same way.
Unitary patent protection
Under today's proposals, the translation and related costs of patent protection would drop radically. The translation costs for a European patent with unitary effect in 25 Member States would be €680 in the long run, and less than €2 500 during a transitional period.
The Commission proposes that:
The proposals do not affect the procedural costs leading up to the grant of European patents (the so-called pre-grant costs)
The Commission's proposal for a single EU patent had been under discussion for over a decade but there has been stalemate in the Council over language rules. The Commission tried to unblock the file by presenting its 2010 proposal on the EU patent’s translation requirements (IP/10/870). But since the Council could not agree unanimously on the applicable translation regime, in December 2010 the Commission tabled a proposal opening the way for enhanced cooperation to be authorised in this area (IP/10/1714). On 10 March 2011, following the consent given by the European Parliament on 15 February, the Competitiveness Council adopted the authorising decision to establish unitary patent protection in the territories of the 25 participating Member States.
Under the EU Treaty and the Treaty on the Functioning of the EU, enhanced cooperation allows nine or more Member States 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.