14 Enhancing the patent system in Europe
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8302/07
COM(07) 165
| Commission Communication: Enhancing the patent system in Europe
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| Legal base | — |
| Document originated | 3 April 2007
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| Deposited in Parliament | 10 April 2007
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| Department | Trade and Industry
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| Basis of consideration | EM of 26 April 2007
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
14.1 The creation of a Community patent was first proposed in
1975, with renewed efforts to reach agreement being commenced
in 2000 as part of the Lisbon strategy. The Council reached a
common political approach in 2003 on the creation of the Community
patent, but this agreement has been criticised by users for providing
an overly centralised and inadequate regime for jurisdiction.
The language regime is also considered to be unsatisfactory in
that it still requires patent claims to be translated into all
23 Community languages.
14.2 Proposals for a Community Patent Court (i.e. a judicial panel
established under Article 225a EC) have been overtaken by an initiative
of the European Patent Office to establish a centralised jurisdiction
to deal with European[38]
(as opposed to Community) patents which has resulted in the European
Patent Litigation Agreement (EPLA).
The Commission's Communication
14.3 The Commission's Communication is intended to "revitalise
the debate on the patent system in Europe, in a way which encourages
Member States to work towards consensus and real progress on this
issue". The Commission remains of the opinion that the creation
of a single Community patent "continues to be a key objective
for Europe" and the Communication considers an "integrated
jurisdictional system" for the Community patent, as well
as the possibility of creating a unified and specialised patent
jurisdiction, based on the EPLA, which would have competence in
relation both to Community and to European patents.
14.4 The Communication notes that the European Patent Office administers
a single procedure for the grant of a patent, but that once this
is granted it becomes a national patent and is subject to the
national rules of the Contracting States to the European Patent
Organisation. The Commission describes the European patent as
a "bundle of national patents" rather than a unitary
title, and points out that where the issues go beyond the borders
of a particular States there is no single jurisdiction for disputes
over a European patent, with the result that any infringement,
invalidity counterclaim or revocation action in relation to a
European patent may become subject to a number of national laws
and procedures.
14.5 The Communication goes on to describe a number of procedural
and substantive differences in the laws of Member States and differences
in the degree to which patent matters are heard by a specialised
jurisdiction, and indicates that these may give rise to legal
uncertainty and forum shopping.
14.6 The Communication notes that more than 90% of current patent
litigation takes place in the courts of only four Member States,
namely, France, Germany, the Netherlands and the United Kingdom
and that it is estimated that 60 to 70% of patent infringement
and invalidity actions concern European patents. The Communication
also notes that the cost of litigation appears to be highest in
the UK, with Germany having the lowest costs, but also notes the
tendency of large international companies to conduct their litigation
over important cases in the UK, rather than in the other three
Member States. The Communication considers that the overall cost
of litigating a patent case before a single European Patent Court
would be around 10 to 45% less than the present costs of conducting
parallel litigation in several jurisdictions.
14.7 The Communication describes the two main options which have
emerged from discussions as being either to develop the European
Patent Litigation Agreement, or to provide a Community jurisdiction
for both European and Community patents. The EPLA option would
involve the creation of a European Patent Judiciary, consisting
of a Court of First Instance, a Court of Appeal and a Registry.
Under this option, the Council would confer authority on the Commission
to negotiate on the EPLA .
14.8 The Commission points out that some Member States consider
that creating such a new parallel jurisdiction would risk creating
inconsistencies and, in the case of Community patents, would lead
to duplication. These Member States favour the creation of a unified
Community court structure for litigation in respect of both European
and Community patents. On the other hand, the Commission notes
that a number of Member States, supported by users, do not consider
that such a system would be workable, and fear that the procedures
which would be created would turn out to be inefficient and inadequate.
14.9 The Commission notes that neither of the options appears
to have any realistic chance of making progress and that the positions
of the Member States have become polarised. The Commission therefore
suggests a compromise to avoid the creation of two competing jurisdictions
at European level, by creating a unified and specialised patent
judiciary with competence over European and Community patents.
In the Commission's words " such a judicial system could
be strongly inspired by the EPLA model, in particular as regards
the specificities of patent litigation, but could allow for harmonious
integration in the Community jurisdiction".
14.10 The suggested patent jurisdiction would consist of a limited
number of first instance chambers as well as a fully centralised
appeal court. The allocation of cases would be handled by a registry
on the basis of "clearly defined and transparent rules",
and the first instance courts and appeal court would work "under
common rules of procedure based on best practices in the Member
States". The Commission adds that the new patent jurisdiction
"must respect the European Court of Justice as the final
arbiter in matters of EU law, including questions related to the
acquis communautaire and to the validity of future Community
patents".
The Government's view
14.11 In his Explanatory Memorandum of 26 April the Minister for
Science and Innovation at the Department of Trade and Industry
(Malcolm Wicks) recalls that the European Patent Office (EPO)
has been a great success since its creation in 1977 and now has
32 European States as participants, including all 27 EU Member
States, Switzerland and Turkey. The Minister explains that, although
the EPO is authorised to grant patents on behalf of its Contracting
States, the enforcement of such patents remains a national matter
and that this leads to inconsistent interpretations and uncertainty
for business. These considerations led to the adoption of the
European Patent Litigation Agreement (EPLA) setting up a single
European patent court to rule on European patents, but the Minister
further explains that work on the EPLA has been "largely
stalled" since 2004, due to objections by the Commission
over the competence of Member States to conclude it and potential
conflict with the Community patent.
14.12 The Minister adds that the calls on the Commission to authorise
Member States to conclude the EPLA led it to launch a consultation
on the future of the European patent system in 2006 and that "overwhelmingly"
respondents to the consultation supported the EPLA as the way
forward.
14.13 Of the various options described in the Commission's Communication,
the Minister explains that the Government supports the EPLA as
the system would use the same three languages, English, French
and German, as are used by the EPO, and provides for technically-qualified
judges to give the court the required level of expertise. The
second of the options, which would provide for the use of the
existing Community courts to deal with both European and Community
patents, is supported by France and some other Member States,
but is described by the Minister as a vague proposal which is
clear neither as to the language regime nor the means of ensuring
the technical expertise of the court.
14.14 The Minister explains that the Commission's compromise option
is presented as a middle path between the EPLA and use of the
existing Community courts and that it proposes a court with limited
regional chambers at first instance and central case allocation,
and which would be fully integrated into the Community court system
so that it could deal with future Community patents. The Minister
comments as follows:
"We support this approach, which should allow the practical
questions to be debated openly and enable us [to] achieve a pragmatic
outcome. Focussing on objectives should help progress to be made
on the issues surrounding how such a Court can be made affordable
and high-quality, including the more controversial details, such
as regional chambers, technical judges, and the languages used
by the Court."
Conclusion
14.15 We thank the Minister for his detailed and helpful Explanatory
Memorandum.
14.16 We welcome the renewed discussion on the way forward
to ensure efficient systems for enforcing patents in Europe, and
we regret that obstacles have been placed in the way of the European
Patent Litigation Agreement, since this arrangement seemed to
achieve a high degree of acceptance by patent users.
14.17 We support the points made by the Minister in relation
to the Commission's compromise option, and we look forward to
an account by the Minister, in due course, of any progress made.
In the meantime, we are content to clear the document.
38 I.e patents within the scope of the European Patent
Convention. Back
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