Portugal pushes for Community Patent

Optimistic about a breakthrough: Portuguese Justice Minister João Tiago Silveira.

A Community Patent, or something approaching it, within the next 12 months? That’s what João Tiago Silveira, Portugal’s justice minister said during an unusually productive meeting of national government ministers last week, which he chaired.

Hailing a breakthrough, Silviera said work will begin in earnest to create a unified patent litigation system and, separately, a Community Patent, and that he is “optimistic” these will lead to “specific results” by the end of the French presidency of the European Union in the second half of next year.

The two-day meeting, known as the Competitiveness Council, for once lived up to its name. In addition to galvanizing a 30- year-old debate on patents, it also agreed to keep the EU in the space race, to create a European equivalent of the Massachusetts Institute of Technology, and to spend almost €10 billion on research (see related story) in electronics, computers, medicines and aeronautics.

Silviera’s bullish remarks about reforming Europe’s fragmented and expensive patent system come less than a month after France broke a long-standing deadlock on the question of what languages patents must be filed in by signing up to the so-called London Agreement.

They also follow the political agreement on the EU’s constitutional treaty that was reached last month by heads of state and government. The debate about the treaty has eclipsed most other issues since 2005 when its first draft failed.

There is space now on the political landscape and momentum for a breakthrough on patents, said Jonathan Zuck, president of the Association of Competitive Technology. “Portugal’s proposals for a unified patent system are solid. If the EU follows through on them this will create a framework that could accommodate a Community Patent later,” he said.

“It may have taken thirty years to get here, but a breakthrough could be achieved in as little as thirty days,” he said.

Not over yet

For innovative SMEs like those Zuck represents, the important thing is that the Community Patent remains the goal. “Our members support the London Agreement and this plan for a unified patent litigation system, but the job’s not done until there is one patent for the whole EU,” he said.

Portugal’s plan for patent litigation includes practical measures, such as the creation of alternative dispute resolution (ADR) bodies, and training patent court judges from the 27 member states to implement the European Patent Convention in the same way.

“ADR is far better way to resolve patent disputes than litigation. Parties often walk away friends after their dispute has been resolved, but almost never happens after going to court. SMEs need friends more than big firms, so it’s not just the monetary cost of litigation that we’re concerned about,” he said.

Portugal won broad support for its practical approach at the meeting last week, but some countries including France argued that it is too ambitious to work on the litigation system and the Community Patent itself simultaneously.

“We first wish to have a legal system before we go for a Community patent. We think if we mix the two, we won’t reach a solution,” France’s European Affairs Minister, Jean-Pierre Jouyet told reporters.

Germany disagrees, supporting instead Portugal’s all-inclusive approach.

Meanwhile Spain, which has not signed up to the voluntary London Agreement, continues to insist that its language must not be sidelined. The London Agreement will allow patent applicants in signatory countries to submit their patents in only one language: French, English or German.

Success in fixing the patent system is far from guaranteed. Especially as there are now what Zuck calls “new political forces that take an anti-intellectual property stance and are mobilised to work against the creation of a Community Patent”.

Portugal sat in the president's seat in 2000 when the EU signed up to the Lisbon Agenda, an ambitious plan for fixing the patent system and making the Union more innovative and competitive than the US within ten years.

Seven years on, the EU is no nearer to overtaking the US, and by some measures it has fallen further behind. With its capital city so strongly linked to those lofty goals set in 2000, Portugal was under pressure to come up with results during its latest stint at the helm, which ends next month.

Many diplomats from different countries said last week's meeting did just that.