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Tuesday, September 09, 2003

What will happen next with regard to the EU Community Patent?

Well, that matter is in the pipeline and on the agenda of the

Council of the European Union. However, it looks as if this purely formal assertion would be the most confident statement possible at the time being.

In fact, based on the basic agreement reached on March 03, 2003, a

Proposal for a Council Regulation on the Community patent had been published. Meanwhile, the Council has offered an

amended version thereof.

According to the proposal, the EU would join the European Patent Convention, and by selecting the "EU Community Patent" a patent applicant would be able to obtain patent protection for an invention throughout the entire territory of the EU.

But there are the gory details. There is a long list of problems. The most nasty matter, however, is to deal with the question of the languages in which the EU Community Patent is to be made available. The most efficient solution would be simply to require that every EU Community Patent has to be made available in English. De facto, English is the "lingua franca" of the modern globalised economy, and concerning all persons involved therein it can be deemed that they have a sufficient command thereof. Industry circles have been in favour of such approach. But, regrettably, in terms of today's political conditions of force, such language regime is simply a non-starter. In particular a number of mediterranean countries fiercely opposed against any such reasonable and simple solution. Finally, the basic proposal exhibited a compromise of that kind which is typical for many EU controversies:

According to a recital of the draft proposal, the language regime for the Community Patent will, up to grant, be the same as the one provided for in the European Patent Convention. This means that the applicant has to present a complete application document in one of the three official languages of the EPO (English, German, French) as well as, at the time of grant of the patent, a translation of the claims into the two other EPO languages. The applicant must, at the time of grant of the patent, file a translation of all claims into all official Community languages except if a Member State renounces the translation into its official language. The translations will be filed with the EPO and the costs borne by the applicant, who decides on the number and the length of claims to be included in the patent application, thereby having an influence on the cost of translations. If the translations are not deposited in due time a Community Patent will be deemed to be void ab initio. If the translations into Community languages other than those required for the granting of the patent under the provision of the EPC are produced and deposited at the EPO within a maximum of two years of the granting of the patent, the holder of the patent can exploit the rights conferred by that patent as from the date of publication of the notice of granting of the patent.

The traditional users of the European Patent Office seem to be dismayed about this proposal because of the costs associated with preparing the required claims translations, namely for all EU languages in the worst case. Maybe that the industry will not even make use of the EU Community Patent at all because of those translation costs. The United States form a market of comparable size and can be reached in terms of patent protection with a single language, namely English. Why do the Europeans think they need dozens of languages for their patent system?

However, the political compromise as reached on March 03, 2003 on the language regime seems to be quite unchangeable, and any attempt to push towards some alterations in this respect would doom the entire project of the EU Community Patent to fail. There might be very few loopholes to escape the detrimental consequences of the envisaged language regime:

A number of EU Member States might prefer to waive the translation requirement; and/or the EU Council might reach a position according to which the translations to be filed merely have informal character, whereas only the original text of the language of the proceedings is legaly binding. In this case, computer-generated cheap low quality translations might perhaps be used for dissemination of information about the claims granted.

Both assumptions are vague. The

Italian EU Presidency wants to finalise that matter by November 11, 2003, possibly together with the adoption of a Regulation amending the Community Trade Mark Regulation and with obtaining a Political agreement on a Directive on the enforcement of intellectual property rights.

Maybe that the EU Community Patent merely plays the role of a vanguard concerning the question of the language regime within the EU. I think that also in other areas of the administrative and political life the current tendency to adopt and cultivate each and every EU language will inevitably fail eventually due to the enormous complexity and costs of such undertaking. In the patent system as well as elsewhere we need an education that makes all Europeans bilingual in the next generation: If (virtually) everybody throughout the entire EU has a sufficient command of the English language, all economic and political processes can be facilitated enormously. And, moreover, the English language could one day serve to create something like a true European public which is absent today. This is not a quixotic utopia. The Scandinavians are well ahead on this road even today.

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