Is the EU going to have a new common patent law?

By EDRi · February 23, 2011

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Deutsch: [Einigt sich die Europäische Union auf ein gemeinsames Patent? |]

Based on a recommendation of the Committee on Legal Affairs, the European
Parliament approved on 15 February 2011 the use of the enhanced co-operation
procedure to create a unitary patent system in the EU, following the
request made by 12 Member States in December 2010.

Presently, there are national patents coexisting with a European patent in a
complicated and fragmented system which implies that the patent holders must
choose the countries where they want patent protection. Also, Member
States may impose additional requirements and the European patents are only
enforced by national laws. The expenses involved are also very high because
the current system requires the translation into the official language of
every country in which patent protection is sought. According to the
European Commission, a European patent validated in 13 countries can cost up
to 18 000 euro, more than half of which on translation fees.

Attempts have been made during the last year to get a unified system but
they have failed mostly due to translation issues. In 2010, Spain and
Italy raised objections to the EU plans to allow EU patents to be printed in
any of the three EU official languages: English, French or German. The
enhanced co-operation procedure allows a group of EU nations to use EU
government bodies to create a new system when unanimous agreement cannot be
found. Other countries can opt-in to the new rules later on. Under the
Lisbon Treaty a minimum of nine Member States is enough for this procedure.
The Member States, having initiated the proposal, believe a unitary patent
system in EU will make things cheaper and easier, will ensure equal access
to all inventors within the EU and will simplify the handling of
infringements. .

The enhanced co-operation proposal is still to be examined by the
Competitiveness Council on 10 March 2011. If approved by the Council as
well, the Commission will have to present two proposals, one on the language
regime (consultation procedure) and the other establishing the single patent
(co-decision procedure).

However, a key legal opinion by the European Court of Justice is expected at
the end of this month regarding the proposed “enhanced cooperation”.
According to documents published until now, the Court might find the
proposal in conflict with the EU treaties, which will delay the process and
require changes to the proposal.

Free Software Foundation Europe (FSFE) has expressed concerns that the
European Parliament might lose its legislative competence regarding patents,
which will be controlled by the European Patent Organisation (EPO). A
conflict of interest would then be created, the EPO being responsible both
for awarding patents and for defining what is patentable.

FSFE also believes that “software patents hurt innovation and are an
unnecessary burden on European software developers. (…) Legislators need
to take charge and make sure the patent system contributes to the public
good. As the European Patent Organisation has acknowledged, this is a
decision that cannot be left to bureaucrats and the judiciary.”

Spain and Italy might also use the courts to further postpone the process.

Single patent co-operation plan gets committee go-ahead (27.01.2011)

MEPs support vanguard group on EU patent (15.02.2011)v

New pan-EU patent plan will be adopted by 25 of EU’s 27 countries, says
Commission (16.02.2011)

European Patent: FSFE urges European Parliament to wait for legal advice

Draft European Parliament Legislative Resolution on the proposal for a
Council decision authorising enhanced cooperation in the area of the
creation of unitary patent protection (2.02.2011)