Brussels, 25 June 1997
Patents Commission approves Green Paper
Should the patent system in Europe be improved and modernized? This is the central question put forward in a Green Paper which has just been approved by the European Commission, at the initiative of Mario Monti, the Commissioner responsible for the single market, acting with the agreement of Édith Cresson, the Commissioner responsible for research, education and training. The Green Paper is intended to provide a basis for consultation with interested parties in order to determine whether users' needs are currently being met and whether new measures ought to be taken at Community level. Among other questions, the Green Paper asks whether the Community Patent Convention concluded by the Member States in Luxembourg in 1975 should be replaced by full scale Community legislation which would ensure that businesses and innovators could secure patent protection throughout the single market on the basis of a single patent application.
"The present system of patents in the Union is complex and expensive, and does not provide a unitary patent for all the Member States", says Mario Monti. "We have to see to it that innovations can enjoy the same protection throughout the single market, in order to develop the role played by innovation in competitiveness and job creation." Édith Cresson welcomes the approval of the Green Paper: "it will revive the debate on essential questions already put forward in the Commission's Action Plan for Innovation: how can we improve the protection of innovation in the European Union, so as to encourage initiative and overcome one of Europe's great handicaps, its difficulty in converting its own scientific and technological breakthroughs into new goods and services?"
The patent system plays a major part in the protection of innovation and the dissemination of technical information, a point which emerged clearly in the consultations which followed the approval of the Green Paper on Innovation in 1975 (see IP/95/1438). But the system of patents in Europe has grown complex. Alongside national patents, which continue to exist, there is a European patent, though only an embryonic one: once granted by the European Patent Office in Munich, the European patent operates to all intents and purposes like a national patent. There is no provision for a court of law with jurisdiction at European level to decide disputes in patent cases, such as actions for infringement or revocation of a patent, so that there is always the danger that the courts that hear such actions in the Member States may deliver conflicting judgments. The present system consequently places serious difficulties in the way of the openness and smooth operation of the single market.
The Green Paper asks whether and to what extent the interested parties would be prepared to make use of a Community patent system established by Regulation, under Article 235 of the EC Treaty, rather than by intergovernmental conventions like the Luxembourg Convention on the Community Patent of 1975 and the Agreement relating to Community patents signed in 1989: these conventions have never been ratified by all the Member States, and have never entered into force.
A unitary Community patent would have the advantage that its effects would be the same throughout the Union; it could be granted, transferred, revoked or allowed to lapse only in respect of the whole of the Union. Applicants would need to make one application only, the management of patent rights would be simplified, duplication of legal actions would be avoided, and legal certainty would be improved.
But other technical questions necessarily arise in any discussion of the future of the Community patent, such as whether further harmonization of certain aspects of Member States' patent laws might be needed at Community level, or the impact of the information society and electronic commerce on software related inventions.
The Green Paper also discusses other questions of patent law, such as employees' inventions, the use of patent agents, and the recognition of professional qualifications, and asks whether Community wide harmonization is needed.
Lastly, the Green Paper asks how the system of fees and charges for patents can be adapted in a way which corresponds to the service performed and does not form an obstacle to the protection of innovation.
The Green Paper is intended as a basis for wide ranging consultation of industry, SMEs, individual inventors, patent agents and other interested parties. But it will also be discussed with Member States and the other Community institutions.
The consultation process is to culminate in November 1997, when the Luxembourg presidency of the Council of the European Union is to hold a hearing at which interested parties will be able to comment further on the main points to emerge in the course of the debate. The Commission will then be in a position to determine its legislative agenda.
Copies of the Green Paper can be obtained from the Commission at the following address:
Rue de la Loi/Wetstraat 200
fax: (32 2) 296 17 36
e mail: E3@dg15.cec.be
or via the EU's Europa website:
Observations should be sent to unit DG XV.E.3 by 7 November 1997 at the latest.