COMMUNITY PATENT COURT (5189/04, 5190/04)
Letter from Malcolm Wicks MP, Minister
for Science and Innovation, Department of Trade and Industry to
the Chairman
Your Committee wrote informally on 6 December
2006 regarding EMs 5189/04 and 5190/04, asking to be kept informed
of any significant developments concerning the Community patent,
and its relationship with the other proposals for legislative
reform of the European patent system: the European Patent Litigation
Agreement (EPLA) and the London Agreement on translations. With
apologies for the delay, what follows is an update on recent developments.
In January 2006, the European Commission launched
a consultation on the future of the European patent system, the
main purpose of which was to gauge European support for the Community
patent, the European Patent Litigation Agreement, the London Agreement
and for alternative legislative solutions such as harmonisation
under Article 95 EC.
This consultation showed that there was an almost
unanimous rejection of the Community patent as currently on the
table in the 2003 Common Political Approach, The main objections
were the translation requirements, seen by some as too expensive,
reducing accessibility, but by others as too limited, reducing
transparency; and the legal arrangements, which many felt would
not provide the required levels of legal and technical expertise.
The consultation also revealed little mood for further harmonisation
of patent law.
There was, however, solid support among both
patent professionals and industry for non-EC improvements to the
European patent system, through the European Patent Litigation
Agreement and the London Agreement.
The London Agreement, which, as you are aware,
will reduce the translation burden on patent applicants by almost
50%, has not been approved for ratification by 11 States, including
the UK and Germany. However, French ratification is required before
the Agreement can enter into force. Despite recommendations from
French Senate and National Assembly communities urging their Government
to do so, we have been advised that there is no realistic prospect
of French ratification until after the French Presidential elections
in May 2007.
In September 2006, Charlie McCreevy, Commissioner
for the Internal Market, announced a "two pronged" approach
to European patents. Firstly, he would seek fresh ideas on how
to move ahead with the Community patent. Secondly, he would involve
the European Community in the EPLA negotiations. The Commission
would issue a Communication setting out their patent strategy
in December 2006.
This announcement gave the impression that a
green light had been given to the EPLA. Commissioner McCreevy
spoke to the European Parliament in late September, discussing
how the EC might engage with the EPLA, and how it would ensure
that it was compatible with the single market despite its non-EC
origins.
The UK government has long supported the EPLA.
It will allow patents granted by the European Patent Office to
be litigated before a single, shared patent court, reducing the
burden of multiple litigation, and increasing legal certainty.
It sets high standards of quality, imposes minimal language burdens,
and has the respect of industry, judges and legal practitioners,
across Europe. We consider that the current draft of the EPLA
is one which, following a few amendments to ensure EC compatibility
and judicial independence, should be ratified as soon as possible.
One major benefit of the EPLA is that it is an opt-in agreement,
which need only be ratified by those states which wish to participate
in it. This should allow higher standards to be agreed. However,
under an EC negotiating mandate, which the Commission insist is
necessary in order to ensure consistency with Community law, participation
by all 27 Member States of the EU would be required during its
negotiation.
Following the announcement of the Commission's
intention to allow Member States to participate in the EPLA, the
French Government began circulating a two-page document setting
out, in very general terms, a plan for an alternative to the EPLA.
This proposal was to set up a similar court structure to the EPLA—regional
at first instance with a central appeal, dealing with patents
granted by the European Patent Office. The French proposal gained
support from Spain, Italy and Portugal: all traditional opponents
to the EPLA.
The EPLA supporters, led by the UK, Germany,
the Netherlands and Sweden have opposed this proposal on a number
of grounds, not least its lack of real detail and apparent legal
impossibility under the EC Treaty. Bearing in mind that negotiations
on the EPLA began in 1999, it seems unlikely to us that a brand
new proposal for a litigation system, which must fit within the
already overloaded European court system, could reach the point
that it has expert endorsement equivalent to the EPLA in the near
future. Furthermore, certain aspects of the French-backed system,
such as the language regime for proceedings and the use of national
courts at first instance would lead to greater burdens and more
uncertainty than the system proposed under the EPLA.
The divisions between EPLA supporters and opponents
were highlighted most recently at the Competitiveness Council
on 4 December 2006, during which the UK gave a robust defence
of the EPLA. The Commission is aware that with the current scale
of division no agreement on any way forward can realistically
be envisaged, and has delayed issue of its Communication until
common ground can be found. The Commission has determined to continue
consultation with Member States, in order to find an appropriate
path forward, and the UK has indicated a willingness to engage
flexibly and constructively. We expect the Communication to be
published soon, towards the second half of the German presidency.
If no progress can be made on the EPLA, attention
is likely to revert to the Community patent. However, the EPLA
is a priority for the German Presidency of the EU, and the Community
patent is unlikely to be considered in any detail during this
time. In short, there is unlikely to be any progress on either
proposal to set up a Community patent court in the near future.
26 February 2007
Letter from the Chairman to Malcolm Wicks
MP
Thank you for your letter of 26 February setting
out the main developments last year and this relating to the London
Agreement and the European Patent Litigation Agreement. This has
now been considered by Sub-Committee E. It is regrettable that
it was only following a reminder from our Clerk that your Department
thought it necessary to respond to the Committee's request set
out in my letter of 21 April 2004. As you suggest, we have been
aware of the statements made by Commissioner McCreevy and that
attention is now being focussed on the EPLA. It is, however, helpful
to have a clear statement of the Government's support for this
and we are grateful for the information given.
In the penultimate paragraph of your letter
you say that there is unlikely to be any progress in the near
future on either of the proposed Council Decisions to set up a
Community patent court. The Committee has therefore decided to
clear the proposals from scrutiny. However, if they are revived
we would expect them to be resubmitted promptly under a fresh
Explanatory Memorandum.
We would also be grateful if you would keep
us informed as to the progress of discussions in the Council on
the EPLA. We believe that it is good practice for Departments,
when invited to keep the Committee informed of developments, to
write at least every six months or sooner where the matter is
subject to discussion in the Council.
13 March 2007
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