There have been proposals for a European Community wide patent at least as far back as 1977 yet the obstacles have never been overcome. However, recent developments mean that a compromise position may be within reach. But is the compromise enough?
Although it has been discussed many times over the years, there is currently no “Community Patent”.
The current European patent system differs notably from the European Community Trade Mark and Registered Design systems. Community Trade Marks and Registered Designs, once granted, result in a single right covering all EU member states. Advantageously, only one annual renewal fee is payable and, if states join the EU, these are retro-actively added to the protection provided by the Trade Mark or Registered Design.
In contrast, the current European patent system was established by a multi-lateral agreement of European states in 1977. Although many of the member states are subject to EU Jurisdiction, the European Patent Office is proudly independent of the central EU governing bodies and courts.
At present, grant of a European Patent results in a bundle of essentially separate, nationally-enforceable, rights. Each of these rights are subject to annual maintenance fees and these result in far higher expenses in maintaining rights than a Community trademark or Registered Design.
Member states can require translation of a European Patent into their national language on grant, although many have watered down or dispensed this recently.
Enforcement of a European Patent requires litigation through the national courts of the right in question. Therefore, while examination may be centralised and uniform, enforcement falls under national law and rights of a patentee can differ from country to country.
The European Commission considers the difference in rights at the time of enforcement to be contrary to the key principle of the EU Internal Market that the same market conditions should exist throughout all of the EU’s Member States.
A Community Patent?
The aim of providing a single “Community” patent right that is enforceable throughout the EU, has been the subject of discussion many times over the years. Initial proposals were raised in the mid-1970s. However, the member states have never been able to agree on the language of proceedings, translations at grant and the court(s) responsible for dealing with enforcement proceedings.
In 2009, the European Commission made a refreshed attempt to get member states to agree to an EU wide unitary patent along with the creation of an EU Patent court. The EU Patent court was proposed to have exclusive competence for proceedings relating to European patents granted by the EPO and for the unitary patent protection.
Progress has recently faltered. Spain and Italy rejected the language proposals (that only English, French or German were to be used). At around the same time, the Court of Justice of the EU announced that the proposed EU Patent court would be incompatible with EU treaties.
Although the EU Patent court is unlikely to see the light of day, hope remains for the Community patent - EU Member States have cut Spain and Italy from negotiations in a rarely used procedure called “enhanced co-operation”. Enhanced co-operation has, in fact, only been used once before (in relation to cross-border divorces). Spain and Italy can re-join negotiations if they wish.
Discussions are now expected to progress to the detail needed to implement the Community Patent. In all likelihood, the European Patent Office will act as the granting authority for both the current European Patent and the Community Patent.
While a unitary patent with a single maintenance fee will be welcomed, the absence of a common court tasked to deal with validity and enforcement is a massive weakness in the proposals. For example, enforcement would require national court proceedings in each member state where there was infringement yet the unitary nature of the patent would mean that it would take the decision of just one court to invalidate patent in all states. It remains to be seen if the single maintenance fee be enough to compensate for these issues and entice applicants.