Belgian Presidency pledges to press ahead on patents

Michaël Aendenhof, responsible for intellectual property rights at the Permanent Representation of Belgium to the EU.

This is especially awkward given that the Belgians have made negotiating an EU patent and resolving the outstanding issue of translating patents into different languages a priority for their Presidency. And it remains so, they insist, despite a recent opinion from the Advocate General of the European Court of Justice (ECJ) that gives extra ammunition to those opposed to the idea of EU patents being examined and granted in only English, French or German.

“We will make every effort to make progress on this file. It would of course be very difficult to resolve everything, but we are ambitious,” Michaël Aendenhof, responsible for intellectual property rights at the Permanent Representation of Belgium to the EU, told Science|Business.  “We can’t say what the exact result will be, as there will be important political discussions in the coming months. It is a very sensitive subject,” he said.

The Advocate General’s opinion, signed off as the summer break started on July 2nd, but unremarked on until it appeared on EPLAW, a patent lawyers’ blog on August 20th, states that the plan to create a single court for litigating patent disputes is, as it stands, incompatible with EU treaties. One reason given is that the proposal to operate in English, French and German only is contrary to the rights of defendants who do not speak, or work in, these languages.

“The Advocate General’s conclusion seems very negative, but if you read the actual opinion it does not exclude the compatibility of the patent court with the European treaties,” Aendenhof said. He added that the language issue for Single EU patent and for the patent court shouldn’t be confused. “What the Council is dealing with at the moment are the language arrangements for the EU patent, following a proposal by the Commission on June 30. This is a different discussion than the language regime for the court.”

That may be so, but the creation of the Single EU patent depends on the establishment of a unified patent court where any disputes can be litigated. The Advocate General’s opinion will be followed later this year by a ruling from the ECJ as a whole. The Court of Justice is not obliged to accept the advice of its Advocate General, but even if it does not the opinion provides ammunition for countries including Spain, Italy and Poland, which are against the three languages proposal.

Indeed, the Belgian Presidency’s chance of reaching an agreement before the end of the year mainly depend on persuading a few member states to agree to the language proposals, believes Bruno Van Pottelsberghe, senior fellow at Bruegel and professor at Université Libre de Bruxelles, Solvay Brussels School of Economics and Management.

“The Belgian presidency could make a major advance if at least there’s political agreement on language issues. But for that, the agreement of every member state is needed, and that’s a tall order. The opinion from the ECJ concerns a few technical details that can be fixed easily,” Van Pottelsberghe told ScienceBusiness.

The issue of languages has been a stumbling block for years. At present, the European Patent Office, an intergovernmental body that includes the EU27 and 10 other European countries, grants European patents, but the inventor then has to request validation at a national level, which brings with it translation and administration costs. Many argue that this state of affairs is too costly and complex, and that an EU patent operating in a limited number of languages would be more cost-effective and competitive.

The Belgians will be seeking to broker a political consensus among member states on the European Commission’s proposal for translation arrangements, published on June 30. The suggestion is for EU patents to be examined and granted in English, French or German, the official languages of the European Patent Office. Patents would only be required to be translated into other languages in the event of a dispute.

Innovation proposals to be put to heads of state

If this seems a lot to chew in the four remaining months of the Belgian Presidency, patents aren’t the only research-related item high up on the to-do list. Work for the next few weeks will be geared towards the Competitiveness Council of October 11-12 in Luxembourg, where the simplification of research funding rules and the Innovation Union plan to promote the commercialisation of research, will be high on the agenda.

Maire Geoghegan-Quinn, the EU Commissioner for research, innovation and science, is due to make a presentation to the Council on the Innovation Union, noted Patrick Lamot, responsible for research at the Permanent Representation of Belgium to the EU. This is particularly important because of the decision by Herman Van Rompuy, president of the European Council, to make innovation the focus of the December summit of heads of state.

One measure of a successful Belgian Presidency, Lamot said, will be if there are “concrete items on the table of the heads of state” and we get things moving on innovation.

The other key measure by which the Belgian Presidency will be judged is making progress on the simplification of EU research funding, Lamot said. An end needs to be put to the current situation where researchers go straight to national funds because they are “discouraged” by the procedures for EU funds, which he says are seen as being “too complicated.”

Geoghegan-Quinn has also made simplifying grants a priority. She issued a communication on the subject in April and cooperated with Financial Programming and Budget Commissioner Janusz Lewandowski on the proposal for a new and simplified Financial Regulation, announced in May.