Slovenia, France build pressure for Community Patent

After more than 30 years of failure some politicians are beginning to think the unthinkable – that there could be political agreement paving the way for a Community Patent by the end of the year.

And in a separate but related initiative, both countries are actively pursuing the creation of a single patent jurisdiction for Europe – an effort that began in earnest at the end of last year.

A single patent regime for Europe is sorely needed. Without it different national courts frequently contradict each other in rulings, creating legal uncertainty and added costs for patent holders and patent challengers alike.

Last autumn France signed up to an agreement that will reduce the burden of linguistic translations for patent applicant once it comes into force in May. That, together with an agreement on a single patent jurisdiction for Europe, would amount to Community Patent Lite, by overcoming two of the deepest fault lines in the status quo.

“The Slovenian Presidency is continuing to work on main features of the EU patent jurisdiction and the relevant procedural issues,” said a Slovenian diplomat who asked not to be named.

He added that the talks remained technical in nature. One of the major issues is whether to frame the single jurisdiction in a piece of EU legislation or to propose an international treaty to include all 34 countries that are members of the European Patent Organisation. All 27 EU states are EPO members.

On the agenda

The diplomat said he didn’t expect a political breakthrough “in the coming months”. Similarly, the Slovenian government will work on the technicalities of creating a Community Patent. It’s on the agenda for a meeting of national government officials in March, he said.

“This is a long-awaited step in the right direction. We applaud the Member States’ decision to push for a Community Patent,” said Jonathan Zuck, president of the Association for Competitive Technology, which represents small and medium size companies in the EU.

“SMEs are desperate for the simplicity, cost savings, and legal certainty a Community-wide patent system can deliver,” he said, adding: “We urge the member states to work together in order to deliver the much-needed improvements.”

France is ready to pick up the baton in the second half of the year, a French diplomat said. “It is going very well under the leadership of the Slovenians. They have reached an outline for a patent litigation area. We are hoping to pick up the work on both dossiers whatever stage it’s at,” she said, adding that making progress on the Community Patent in particular “is very important for us”.

Indeed, there’s a sense of urgency in the French camp now that would have seemed out of place just a year ago, when Jacques Chirac was president and France was an obstacle to progress in the field of patents. The decision to sign up to the translations agreement, known as the London protocol, happened shortly after Nicolas Sarkozy took over, and his arrival has injected a new dynamism into many policy areas, including patents.

Not so sure…

But those closer to the world of patents are more circumspect about seeing a breakthrough this year. Even the more modest goal of creating a single jurisdiction for patents across Europe is devilishly complex, said Bruno van Pottelsberghe, senior fellow at the Brussels economic think tank Bruegel, professor of economics at ULB – ECARES, and formerly chief economist at the European Patent Office.

“Frankly, it’s over-optimistic to expect a breakthrough this year,” he said in a telephone interview.

“A Europe-wide patent litigation area isn’t that easy to create because there are huge differences between national legislation, and powerful lobbies working against any change to the status quo,” he added, referring to national courts that don’t want to lose jurisdiction to a central authority.

European Patent Office president Alison Brimelow expressed similar doubts in an interview with Science|Business last month. While she applauded the efforts of the politicians to break the deadlock, she noted that there have been “several false dawns” in the decades-long Community Patent story.

Portugal managed to energise the debate towards the end of last year partly because it succeeded in securing agreement on the EU’s reform treaty, known as the Lisbon Treaty. Debates about long term policies – in particular those concerning the EU's ambitious plans to boost innovation and competitiveness – were stalled while the debate about the treaty dragged on.

But even the best political will in the world may not be enough to dismantle the deep-rooted national structure of Europe’s patent litigation system.