In November 2007, Dr. Jens Gaster, GD Internal Market, EU Commission, Brussels, had given a presentation which was then hosted by the Bavarian chapter of Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht (GRUR) on the premises of the German Patent and Trade Mark Office in Munich; see my report here. The presentation had been given in German under the title "Erste Schritte auf dem Weg zu einer umfassenden Reform des Patentsystems in Europa" which means something like "First steps towards a comprehensive reform of the patent system in Europe".
Now, labeling of that project has changed, we talk about the EU Patent and, corresponding thereto, the European and Community Patents Court (PC).
After some political progress had been reached on the session of the EU Council on March 28 and 29, 2009 (2945th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research)), an important breakthrough was obtained on December 04, 2009.
At the beginning of the year 2010, the fate of both ambitious projects appeared to be substantially dependent from two external developments:
- The languages issue had been factored out of the texts agreed upon on December 2009. A political compromise still need to be obtained.
- The EU Council had taken a decision to allow for a re-examination by the European Court of Justice (now Court of the European Union) of the compatibility of the drafted agreement on a single court system for solving patent disputes with EU law.
There appears to be no visible progress with regard to the languages issue since end of 2009. With regard to the referral to the Court, significant news came after the hearing held on May 28, 2010 - see my reports here and there.
However, during the IPBC held in Munich earlier this week, Ms Margot Fröhlinger, Director of Knowledge-Based Economy inside the DG Internal Market of the European Commission, said that both the EU patent and the unified patent litigation system in Europe are "not in the best shape"; see the report in the VisaePatentes Blog. Mr Joff Wild in the IAM Blog went one step further and wrote that the EU patent is dead in the water.
In this situation, Mr Gaster today traveled to Munich and, again organised by GRUR on the premises of the German Patent and Trade Mark Office, gave a lecture on the state of the affairs concerning the EU patent reform.
As usual, Mr Gaster popped up, playing the role of the optimist still trusting in that long-range political processes will eventually wash away all the obstacles barring the EU patent reform from success.
In particular, Gaster is quite optimistic concerning the outcome of the deliberations of the Court of Justice of the European Union. He thinks that as far he has seen documents related to the referral there should be no doubt that at least the main strand of legal groundwork within the treaty for establishing a specialised European Patents Court has a good chance to get final approval. Maybe that the Court might order some minor amendments which would not hamper the project in its entirety. As the EU Council had asked the Court to conduct proceedings with urgency it is expected that the final decision will come out later this year, maybe in the autumn.
So, if the Court approves the Patents Court, what will then happen with regard to the other main obstacle, the languages issue?
Without getting too much explicit, Gaster hinted the auditory that there might well be a single EU country which is determined to sabotage the entire EU patent reform if their desire to get their national language included into the language package is not accepted. And as everyone knows, this one EU country is Spain.
According to Gaster, a formal proposal for a language compromise might be finalised very soon. Probably it will contain a clause saying that besides the usual claims translations into the two Official EPC languages which are not language of the proceedings there will be only a machine translation without any legal effect. Any attempts to seriously promote an English-only policy is in the effect sabotage, he argued, as there will be absolutely no political support. The only perceivable political compromise must be based on English, German, and French as Official languages of the EPC system.
And, Gaster would not be that much surprised if the entire package - including the language compromise - will be rejected by just one of the EU member states. Spain, of course.
In this situation, it is necessary to reflect that on July 01, 2010, the Spanish EU Predidency will be terminated, and Belgium is due to come in. Belgium currently has huge problems because of there is, after recent General Elections, only a managing Government, but they will do the job. It does not come as a surprise that during the term of the Spanish EU Presidency no progress had been made. But according to Gaster, the Belgian Government - whatever party might sent in ministers - is determined to promote the EU patent reform vigorously.
According to Gaster, no less than 11 (eleven) sessions in the context of the EU Council have been scheduled for the EU patent reform agenda during the Belgian EU presidency, none of them in August. Hence, the patent-related working groups etc pp. will be buzzing full of activity from September until the end of the year.
And then there is the general economic crisis. Gaster argues that industries can save considerable costs if the EU patent landscape gets harmonised and adapted to the internal market. Such times are good for ambitious reforms, he reiterates.
Towards the end of the Belgian EU Presidency Gaster expects to see a situation where the Court has rubber-stamped the plans to create a Patents Court plus all but a single one EU Member States agreeing on a compromise including the languages issue. This will then be the final crisis of the project.
As usual, such quasi-failed projects are candidates to be picked up by the Heads of States of all EU Member States when they have one of their regular meetings. And then extremely tough negotiations will happen. I would add that Germany is one of the countries eagerly supporting the EU patent reform project. And she is also one of the big EU Member States. And, as everyone fears, in fall 2010 Spain might perhaps be in such sort of economic trouble that they need to approach other EU Member States, including Germany, for all sorts of politcial help and support. Without this being said explicitly by Mr Gaster, maybe we will see a promising climate for some compromise later this year.
Then, in the early morning hours of the very last day of the summit, after endless hours of toughest negotiations, a bunch of bleary-eyed Heads of State, deprieved of sleep, will somehow find the final compromise on the EU patent reform project.
Share this Article on LinkedIn
