Long Live The EU Patent - But A New EU Patent Court Syste...

The Commission proposal for a Council Decision deals with the authorisation of enhanced cooperation in the area of the creation of unitary patent protection. Proposals for specific measures implementing enhanced cooperation will be submitted once enhanced cooperation is authorised by the Council.

It is, however, appropriate to outline some key elements of the envisaged implementing measures. Since the creation of unitary patent protection is not possible without an agreement on the applicable translation arrangements, both the substantive provisions applicable to the unitary patent (Article 118(1) TFEU) and the translation arrangements (Article 118(2) TFEU) should be part of the envisaged implementing measures.

The envisaged implementing measures should, therefore, include the following elements:

(1) A proposal for a Regulation of the European Parliament and the Council creating unitary patent protection. That proposal could be based on the text agreed (general approach) in the Council on 4 December 200919 as well as certain elements of the draft political orientation proposed by the Belgian Presidency, in particular:

– The unitary patent protection should be optional to the users of the patent system and should co-exist with national and European patents. The unitary patent should be a specific category of a European patent, granted by the European Patent Office, designating the Member States participating in enhanced cooperation on unitary basis.

– Consequently, a single procedure in accordance with the EPC would apply to unitary patents and to all other European patents. Until the moment of grant, applicants would have the choice between (i) a European patent valid in the territories of the participating Member States for which this patent would have unitary character, (ii) a European patent valid in the territories of the participating Member States for which this patent would have unitary character but also designating selected other Contracting States of the EPC, or (iii) a European patent designating only selected Contracting States of the EPC.

– The unitary patent should be of autonomous nature and provide equal protection throughout the territories of the participating Member States. It may only be granted, transferred, revoked or may lapse in respect of those territories as a whole.

(2) A proposal for a Council Regulation on the translation arrangements for the unitary patent. This proposal would take over the main elements of the Commission's proposal for a Council Regulation on the translation arrangements for the EU patent20 as well as certain elements of the draft political orientation proposed by the Belgian Presidency, in particular:

– It is envisaged that the specification of the unitary patent be published by the EPO in accordance with Article 14(6) EPC. Without prejudice to any transitional arrangements deemed necessary, no further translations would be required. Any additional translation requirements under such transitional arrangements would be proportionate and required only on a temporary basis and not have legal value thus ensuring legal certainty for the users of the patent system. In any case, transitional arrangements would terminate when high quality machine translations are made available, subject to an objective evaluation of the quality.

– Translations should not have legal value thus ensuring legal certainty for the users of the patent system.

– In case of a dispute relating to a unitary patent, a full manual translation of the patent specification would have to be provided by the patent proprietor at his expense: (a) into an official language of the Member State in which either the alleged infringement took place or in which the alleged infringer is domiciled (at the choice of the alleged infringer); and (b) into the language of proceedings of the court hearing the dispute (at the request of the court).

– A scheme for compensating the costs of translating patent applications filed in an official language of the Union into an official language of the EPO at the beginning of the procedure for applicants based in the Member States which have an official language other than one of the official languages of the EPO, should be set up in addition to what is currently in place for other European patents, including financial and technical assistance for preparing those translations.

In my understanding this means that the second part of the European patent reform originally envisaged, the Community Patents Court (PC), is now dead. Probably the wobbly legal construction of such entity simply does not work within the framework of an Enhanced Co-operation.

What does that mean?

Next days will show if this approach is merely something like a political instrument. Theoretically, very theoretically, it might happen that Italy and Spain cave into mounting political pressure and accept the full proposal for a EU Patent plus Community Patents Court (PC) as it was on the table on December 10, 2010. This would, however, come next to a miracle. I won't bet on it anymore.

Otherwise, the Enhanced Co-operation group might rubber-stamp the required legal texts very soon, starting with the implementation early next year. However, there is another obstacle: Even the reduced system established under the Enhanced Co-operation scheme will need to revise the European Patent Convention (EPC) by means of a Diplomatic conference in accordance with Article 172 EPC. Italy and Spain might, at least theoretically, try to obstruct such conference. However, the quorum of a two-third majority in accordance with Article 172 (2) EPC can be met even without Italy and Spain. And, if, after the Diplomatic Conference, Italy and Spain don't ratify some amended version of the EPC in due time, they will be squeezed out of the EPC in accordance with Article 172 (4) thereof.

[UPDATE 2010-12-16] It might be interesting to see during the coming weeks if the Enhanced Co-operation group even prefers to boil down the EU Patent to something like a common designation in accordance with provisions already existing in EPC2000 on the basis of Art 142, 149a EPC alone. In such a case there would be no need for summoning a Diplomatic Conference to amend EPC.

(Photo: Wikimedia Commons)