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Charlie McCreevy

European Commissioner for Internal Market and Services

European Patent Policy

EU Presidency/BDI Conference "A Europe of Innovation – Fit for the Future?"
Berlin, 29 March 2007

Minister, distinguished participants,

It is a pleasure for me to be here today. I should like to thank the German Presidency and the BDI for inviting me and for taking the initiative. This Conference comes at a very timely moment. And it poses a highly pertinent question, namely whether the innovation policy we have in Europe is fit for the future.

Personally, I have my doubts in regards to patent policy. Everyone agrees that we need to streamline the existing patent systems. Everyone agrees that we need a simpler, more cost effective system that maintains the highest standards in the quality of patent examination and grant.

But Europe has already been struggling for more than two decades to work out how to get there.

The figures and the facts speak for themselves. Recent studies have shown that a European patent designating 13 countries is about 11 times more expensive than a US patent and 13 times more expensive then a Japanese patent. Heavy translation and legal costs make registering, enforcing and challenging patents expensive and cumbersome.

This is no longer sustainable. We have no choice but to try and reduce the cost of patenting and improve the current litigation patchwork in the EU. The results of the consultation that we did in 2006 were clear on this. There was strong support for a cost effective Community patent including sound litigation arrangements, while at the same time improving the current patent system in Europe. In October 2006 the European Parliament supported this line and urged us to explore all possible ways of improving the patent granting and litigation systems in the EU. This calls for a combined effort by Member States and the Community institutions.

When I took over as Commissioner, I promised to make one attempt on the Community patent dossier. That time has now come. I have proposed to the college of Commissioners that the Commission should adopt a Communication on possible ways forward to improve the patent system in Europe. That Communication is due to be adopted early next week.

The Communication will make some suggestions on how the EU might move out of the current deadlock and increasingly polarised positions, into a more constructive phase of negotiations.

The Communication will not perform a magic trick. I will not be pulling a rabbit out of a hat next week when it is adopted. But I will be putting forward some constructive suggestions on the way forward, especially on the jurisdiction issue, together with a checklist of the different areas of patent policy which the EU needs to address. The Communication will provide a framework for discussions in the Council and the European Parliament.

The approach we take in the Communication is, in my view, the only realistic one. While our focus is on litigation issues, the Community patent has not been left aside. I have said that the Community patent and improvements to the current litigation system for European patents should not be mutually exclusive. Indeed our aim should be to ensure that they converge. If we can find a solution to the litigation issue, it should also be possible to resolve the Community patent issue by finding a consensus on translation arrangements.

On the litigation issue, we do not go for one or the other option for a litigation system which are currently on the table, but try to take the best elements from the different options. We have set out the key principles to be reflected in any compromise and sketched the outline for the features of a jurisdiction which could handle existing European patents and future Community patents. A jurisdiction which would take the best elements of the EPLA draft but be integrated into the Community framework. Our proposal does not reflect the view of one or the other country, but takes account of all views. I believe a true Community approach can be forged if we all roll up our sleeves and work constructively.

The principles which could form the foundations of the jurisdictional structure are as follows:

First, the patent jurisdiction should ensure an appropriate degree of proximity to the users and comprise a limited number of first instance chambers, together with a fully centralised appeal court.

The chambers, which could make use of existing national structures, should form an integral part of the single jurisdictional system.

Second, the jurisdiction would cover existing European and future Community patents. It should have competence for infringement and validity actions, as well as for related claims such as damages.

Third, the appeal court and the first instance chambers should work under common rules of procedure based on best practices in the Member States.

Fourth, the patent jurisdiction should comprise both legally and technically qualified judges who should enjoy full judicial independence.

Finally, the patent jurisdiction must respect the European Court of Justice as the final arbiter in matters of EU law, including questions related to the validity of the future Community patent.

Beyond the Community patent project and jurisdictional arrangements, we will also look at supporting measures for improving the patent system. Above all, we need to ensure patent quality in Europe, as the number of patents grows. We also need to improve access for SMEs to the patent system. It is therefore necessary to adapt the patent system to the specific needs of SMEs. Apart from addressing cost and litigation issues, this requires specific support for SMEs such as awareness-raising campaigns and actions aimed at improving knowledge of patent issues amongst SMEs.

I strongly believe that an improved patent system is vital if Europe is to fulfil its potential for innovation. My intention is to try and create some more fertile ground for a debate in the Council and European Parliament. I have made no secret of the fact that I think that the patent dossier is a very tough nut to crack. I also said in December last year that I’m long enough in politics to know that it is only if there is a will, that there will be a way.

If short-sightedness and selfish vested interests continue to prevail, the European reform agenda will fail and the European economy will suffer. I therefore call upon all concerned to assume their responsibilities, rise to the challenge and strive to find pragmatic and workable compromises. The Commission is doing its job and putting constructive suggestions on the table. It will then be for the German Presidency to take up the challenge and move the dossier forward, which I know it intends to do. The Commission stands ready to assist the Presidency.

The way forward will require constructive dialogue and compromise. Without a readiness of all parties to really try and resolve this issue in the common interest, we simply will not make any progress. I am aware that all the available options raise specific legal issues which need to be resolved once concrete proposals are made. But if there is indeed a will, then there will be a way.

The Commission will work with the Council and Parliament to build consensus on the way forward. I look forward to a close co-operation with the German Presidency in the coming weeks and months in order to promote our patent approach. If broad consensus can be achieved, we will take the necessary steps for implementing the approach and the make necessary proposals.

Time is running out to make out innovation policy in Europe fit for the future. If we don't act now, the future will be upon us and it will be too late. I sincerely hope that all involved will rise to the challenge.

Thank you for your attention.

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