European Union (EU) - Proposals for Unification of Patent Law

The original proposals for the European Patent Convention were intended to proceed in parallel with those for a Community Patent Convention. Indeed, a treaty to implement such a convention was signed in 1975. In the end, this never came into effect as a result of difficulties relating to the languages into which the whole or parts of Community Patents would have to be translated. After several attempts by the member states to resolve these issues had failed, the European Commission proposed an alternative approach to adopt a regulation to create a Community-wide patent and a system for litigating such patents. After what seemed to be a promising start, however, these proposals seem to have fallen afoul of the same problems that beset attempts to implement a Community Patent Convention.

In the summer of 2000, the Commission of the European Union put forward its own proposals for reform of the European Patent System which would involve the joining of the EPC by the European Union as a combined entity for which a single patent (to be called a Community Patent) might be granted. Such a patent would exist in the language in which the application had been prosecuted (i.e. English, French or German) except for the claims which would have to be in English, French and German. Additionally, the Commission proposed that a new court system be set up to have jurisdiction over all patent disputes throughout Europe. These proposals evolved slowly due to political difficulties. A common political position was adopted at the EU Competitiveness Council meeting of March 7, 2003. The major features were as follows:

Revised drafts of a Regulation to implement the Common Political Approach were issued in the summer of 2003 and it was stated by the Commission that it hoped to finalize the regulation before the end of 2003. A number of interesting issues emerged from the drafts, including for example, a provision for the grant of compulsory cross licenses if exploitation of a later patent, for “an important technical advance of considerable economic significance in relation to the invention claimed in” the earlier patent, is blocked by that patent. Another was a possible expansion of the definition of infringement to cover acts carried out in the EU to assist in carrying out the patented invention outside the EU, a broadening of the exemptions from patent infringement to cover acts authorized by certain other EU regulations and directives and introduction of a statute of limitations for starting a patent infringement action of ten years from the infringement, subject to a requirement that the action must be brought within five years of the date on which the patent owner knew or should have known of the infringement.

At the March 2004 meeting of the EU’s Competitiveness Council there were signs that adoption of the regulation might not be proceeding smoothly when disputes arose as to how to deal with errors in translation of claims that were found to have occurred when a patent came to be litigated. These differences widened at a May 2004 meeting when the EU’s Competitiveness Council failed to reach agreement on a number of issues relating to the proposed regulation and its future therefore seems in doubt. Although the European Commission still seems to cherish hopes that a Community Patent Regulation can be adopted some day, the EPO itself seems to be quietly considering alternatives and has created a mini-site on its web-site to provide information on two of these.

The first of these is the London Agreement of 2000. If this comes into effect, it will permit countries having one of the three official languages of the EPO as one of its own official languages or where the European patent is in a language designated as being acceptable in that country to waive its right to have a translation of a granted European patent. Adherence to this agreement is optional and not all members of the EU or EPC are required to join for it to come into effect. This agreement was signed by Denmark, France, Germany, Liechtenstein, Monaco, the Netherlands, Sweden, Switzerland and the United Kingdom. The agreement will come into effect only after ratification by eight countries, including the three to which the EPO granted the largest number of European Patents in 1999. This agreement at present awaits ratification by France whose ratification is necessary for the agreement to come into effect.

The second agreement that might address some of the issues that were to have been dealt with in the proposed Community Patent Convention is the European Patent Litigation Agreement. This has not yet been signed. However, a draft agreement has been produced which would permit those countries that are interested to go ahead and set up a European patent Judiciary from which a patent court of first instance and a court of appeal would be created. The first instance court would sit in a number of regional divisions. The substantive law to be applied by such a court would closely follow the substantive law provisions of the original European Patent Convention.

In the meantime, an EU constitution signed in October 2004 and put into limbo by rejection by referenda in France and the Netherlands in the summer of 2005 had made some provision for intellectual property rights by:

(1) aiming to provide uniform intellectual property rights protection throughout the Union; and
(2) providing that the Council could establish language arrangements for administering such uniform protection by acting unanimously after consulting the European Parliament.

At present it seems unclear which, if any, of the above proposals will come into effect.