The European Commission has formally presented its proposal to create a single European patent, invoking the Enhanced Cooperation mechanism, which allows it to go ahead despite failing to convince all Member States - and notably Italy and Spain - to support the creation of unitary patent protection across the EU.
This means any scheme that is introduced will only be valid in participating countries. “European inventors can afford no further delay,” said Michel Barnier, the European Commissioner for Internal Market and Services, announcing the proposal on Tuesday (14 December).
At present, he said, “Filing for patents in Europe is a costly and complicated affair, making it available only to those companies who have deep pockets: The unacceptable reality is that on average innovators validate and protect their patents in only five of the EU's 27 Member States because of the high costs. “
Barnier made his pronouncement after a request from the 12 Member States of Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the UK, that the enhanced cooperation mechanism is used to allow countries that do agree to move forward immediately. Any country choosing to join in later can do so on equal terms. The proposal to authorise enhanced cooperation needs to be approved by the EU's Council of Ministers by qualified majority, once the European Parliament has voted it through.
Language Regime
Following the intense negotiations by the Belgian Presidency in the EU’s Council of Ministers, the proposal on translation requirements will be build on the existing language regime of the European Patent Office (EPO). Patents will be examined and granted in one of the official languages of the EPO - English, French or German. Applicants in the EU whose language is not English, French or German have the option to file applications in any other official language of the European Union, with the costs for translation into one of the official languages of EPO being refunded.
Announcing that Ministers had agreed to disagree, the Belgian Minister Vincent Van Quickenborne said, “It’s the cherry on the cake of the Belgian presidency. I’m very happy with that cherry and that cake.” While invoking the enhanced cooperation procedure isn’t what the Belgian presidency had in mind as it started its six-month term, reaching unanimity on patent translations proved impossible.
At the end of the Competitiveness Council meeting in November, Van Quickenborne reflected that while most delegations had shown more flexibility than even before, it was clear there would not be a unanimous decision. Italy and Spain were singled out as the two countries holding things back.
As a result, the EU was forced to take, “A tough but logical decision,” Van Quickenborne said at a press conference last Friday. The Belgian Presidency faced two alternatives, “Do nothing or do something,” he said.
“It is a courageous decision because we have been able to overcome an impasse which has marked Europe for 40 years,” Van Quickenborne said. “A new chapter has now opened.”
Barnier, acknowledged that it would be, “eminently more desirable” to reach unanimity, but said that enhanced cooperation, “Is much more desirable than just marking time or taking retrograde steps.”
The aim of the EU patent is to simplify procedures, enhance legal certainty and reduce the costs of filing a patent throughout the EU. Getting a patent in Europe is currently about 10 times more than the €1,850 it costs in the US. In the future the total cost of an EU patent will be €5,000-€6,000, depending on the exact cost of translation, Barnier said.
Once a decision is taken by the Competitiveness Council in March 2011, the whole procedure should be brought to a close, “At the end of next year”, Barnier said. At this point, the European Patent Office (EPO) in Munich will start dealing with enquiries and ensuring EU patents are translated into the appropriate languages, he said.
Googling a way out of the translation impasse
The quality of machine translations is one area where the EU hopes technology will help. On 30 November, the EPO and Google signed an agreement under which the EPO will use Google’s machine translation technology to translate patents into the languages of the 38 countries it serves. In return, the EPO will provide the search engine company with access to its translated patents to help Google improve its language translation technology.
“The partnership with Google to create machine translation tools for patents will help inventors, engineers and R&D teams to retrieve relevant documents efficiently - in their own language - from our wealth of published patent information,” EPO President Benoît Battistelli said.
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