96. Patents can be obtained nationally from Member
States or by a single application for a 'bundle' of national patents
from the European Patent Office. This 'bundle' is, in essence,
a set of individual national patents that are valid in those designated
Member States and subject to the national laws and practices of
that State. The European Patent Office was not a European Community
institution but an organisation created by intergovernmental agreement
- the European Patent Convention in 1973. By contrast, a European
trade mark, valid in all states of the EC, may be obtained
from the Office for the Harmonisation of the Internal Market in
Alicante. Patents can also be applied for through WIPO under the
aegis of the Patent Co-operation Treaty (PTC). The United Kingdom
and 76 other countries are parties to the PCT. If a company files
a patent application under this treaty it will (if granted) be
effective in each country listed on the application.
97. In 1975, the then Member States signed a Community
Patent Convention to provide for a unitary Community patent but
this has never entered into force. The European Commission now
intends to bring forward a draft Regulation establishing a single
unitary patent across the EC. It is proposed that this Community
patent should, at least for a transitional period, coexist with
the national patents and the European patent.
The main problems with the original proposal for a Community Patent
were those that still exist today- the cost of translations and
the intricacies of the litigation system. The DTI told us the
Government is "supportive" of the Commission's intention
to bring forward the draft regulation and that: "United Kingdom
industry is broadly in favour of the introduction of a Community
patent but believes that such a system should exist alongside
the existing systems at least until it can deliver against industry's
two main demands, that it should be inexpensive to obtain and
enforce and should command legal confidence".
For example, under the proposals, any invalidity decision taken
over a patent would stand for the whole Community. CIPA stated
to the Committee that it would be "very nice if we could
have a single court of first instance to try for infringement
rights as well as for validity" and cited the Epilady
case as an example of current weaknesses in the system.
In that instance, on an identically worded claim no infringement
of the Epilady patent was found in the UK but infringement
was found in the German courts.
Mr Watson of the Patent Office told us in oral evidence that currently
there were also a "lot of cultural and other political issues
behind it, so I think it is going to take some time and quite
a few difficulties have to be overcome".
98. The US currently operate a 'first-to-invent'
process for patents rather than the 'first-to-file' process that
operates in the rest of the world. The first-to-invent requirement
"places additional burdens on inventors in the UK who seek
patent protection in the US since they will be required to maintain
notarised records of all their laboratory and field work".
The system produces an unnecessary and expensive level of litigation
and uncertainty. The IPR Action Plan in the Competitiveness White
Paper included the objective to: "press the US to introduce
a 'first-to-file' patent system in line with the rest of the world".
The Government "is taking every opportunity to persuade the
US authorities to conform".
However, the Minister told us that he was not sure if the US were
"open to persuasion" and they would be "very loathe
to give up what they perceive to be great advantages. But I think
that they understand also that the name of the game now is incremental
developments in almost every single area".
99. The Competitiveness White Paper set out an
IPR Action Plan which included a number of objectives for patents-
for example, to push for an EC patent which is affordable and
easy to enforce, to ensure harmonisation of 'petty' patents, and
to press the US to introduce a 'first to file' system. These are
in broad terms admirable objectives: we will be tracking progress
in their implementation together with the other objectives of
the White Paper.