In what it hopes will be the final push, the European Commission yesterday (April 13) put forward two legal proposals to turn the long-held ambition for a single EU patent into reality, offering the come-on that if agreed, registering a patent enforceable in 25 member states will cost only €680.
One proposal deals with how patent holders obtain unitary patent protection while the other sets out the rules for language translation. The move comes despite ongoing uncertainty about the Patent Court that will be used to enforce EU patents, and the not insignificant fact that Italy and Spain have refused to sign up to the project.
This latest effort on the European Patent is part of a broader effort to revive and enhance the single market in a new act which is intended come into force in 2012 - the 20th anniversary of the creation of Europe’s open market.
Along with the European Patent, the new Single Market Act includes eleven other projects that have been selected from 50 that were suggested by the Commission in October 2010. (Towards a Single Market Act).
Under the single patent proposals put forward by the Commission this week, inventors will apply for a European patent at the European Patent Office (EPO), exactly as they do today. But instead of having to – expensively - validate a European patent in each country that belongs to the EPO system, patent holders will be able to ask the EPO for unitary protection, which in one stroke will protect an invention in 25 member states.
Patents in translation
On the thorny issue of language translation, the Commission is proposing that applicants will be able to file their patent application in any language. However, a translation must be provided into either English, French or German, as the official languages of EPO. Applicants who are EU residents will be compensated for the cost of translating documents.
The European patent will be granted in one of the three languages, with the applicant being required to provide a translation of the claims defining the scope of the invention, into the other two official EPO languages.
Speaking in Brussels, where he was presenting details of patenting activity in 2010, Benoît Battistelli, President of EPO said, “I’m convinced [unitary patent protection] will have a positive impact because it will reduce costs and will reduce formalities.”
According to the Commission, the cost for a European patent with unitary effect in 25 Member States will be €680. Additional translations required during a transitional period when the single patent first comes into effect will increase this figure. “But even under these arrangements, patent protection will cost less than €2,500 for 25 Member States,” the Commission said.
The Commission claims that EU companies and individuals already working in English, French or German won’t be given an advantage over counterparts working in other European languages because applicants can file in any language and they will be compensated for translation costs.
There will also other measures to ensure there is a level playing field whilst the single patent legislation is bedding down. For a transitional period of a maximum of 12 years, European patents with unitary effect granted in French or German must be translated into English while those granted in English must be translated into another official EU language. “These translations will be required until high-quality machine translations are made available to ensure the availability of patent information,” the Commission said.
“I continue to hope that, in time, all Member States will choose to participate in this enhanced cooperation,” said Internal Market and Services Commissioner Michel Barnier, as he outlined the proposals. “It is my deeply held conviction there is no sustainable economic growth without innovation. And no innovation without efficient intellectual property protection.”
But how to deal with patent disputes?
Meanwhile, discussions continue on how to establish a single litigation system to enforce EU patents, after the European Court of Justice ruled on 8 March (European Patent Court wouldn’t be legal) that the current plans for a single court to deal with patent disputes were incompatible with EU law. Barnier said the Commission was studying the ruling extremely carefully and would present a new proposal at the beginning of May.
A single court is key to avoid the complexity and expense of having parallel litigation in several Member States, with the possibility this presents of conflicting judgments. Battistelli remains confident that a solution will be found. “I’m convinced it’s possible to find a litigation system that will be unique in Europe and competent for European patents,” he said.
The plans for a single EU patent are being pursued via the enhanced cooperation procedure, which allows a group of member states to adopt new common rules when a unanimous EU-wide agreement cannot be reached. The procedure was launched in December 2010, after opposition from Italy and Spain meant that not all Member States could agree on an EU-wide patent system.
Separately, the EPO yesterday also released figures for patent filings in 2010, showing applications bounced back after the financial crisis, rising 11 per cent overall on 2009 and 4 per cent on 2008.
“The figures are clear: growth is back,” said Battistelli. “After a two-year slump, the EU and US are nearly back to the levels of patenting of before the crisis. This, combined with a massive rise in patent applications from Asia – led by China – has made 2010 a record year at the EPO,” he said.
The number of patent applications from China almost doubled between 2008 and 2010, although the absolute numbers are still relatively low. In 2010, China filed 12,698 applications at the EPO, compared with 82,828 from EU countries, 60,588 from the US and 41,917 from Japan.
Of the top 50 companies filing for patents, only one Chinese company features, the telecommunications company Huawei. Topping the list of companies filing at the EPO, were three European companies, Siemens, Philips and BASF. The top 10 included five European, two Japanese, two Korean and one US company.