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A single European patent – European Patent Office to the rescue?

October 2006 - Intellectual Property. Legal Developments by Field Fisher Waterhouse.

More articles by this firm.

The cost of obtaining and enforcing patents in Europe is expensive when compared, for example, with the US. Accordingly, there has long been a desire for a single European patent, but enormous difficulties (particularly relating to language) have hindered steps towards such a goal. Things may, however, be changing.

Current situation

At present patents granted in Europe are national monopoly rights - there is no single, pan-European patent. Through the European Patent Office (EPO) it is possible to make a single patent application which, on grant, evolves into individual patent rights in the designated territories. This central examination helps reduce the costs of filing patent applications across Europe, but it can still be expensive, particularly due to the need to translate the patent into other European languages.

Further, because the European patent application evolves into a number of identical (save for language) national patents, when it comes to enforcement, the patentee may have to instigate proceedings in each of the jurisdictions. The ECJ recently reaffirmed this principal in Gesellschaft für Antriebstechnik mbH & Co KG v Lamellen und Kupplungsbau Beteiligungs KG and Roche Nederland BV and others v Frederick Primus and another. Pan-European patent enforcement is therefore costly. Further, it can, and does, lead to different decisions in different territories.

Proposals for a single European patent

There are two proposals on the table. One comes from the European Commission, which has been proposing the creation of a single patent right valid across the EU: the Community Patent. There would be one court, based in Luxemburg, for hearing all disputes relating to a Community Patent; any decision would be effective throughout the EU. Concerns, however, about the effectiveness of a single central court, and the perennial difficulty surrounding translations, have stalled the Commission's proposal.

In the meantime, the EPO (which is not an organ of the EU) has been making its own proposals. Under the EPO's proposals, states could elect whether or not they wished to be party to the European Patent Litigation Agreement (EPLA). The granting of patents by the EPO would be unaffected, but signatories to the agreement would agree to an integrated judicial system relating to EPO patents, and any judgment would have effect in all the contracting states. Unlike the Commission's proposals, the EPLA would apply to existing patents, and would have an immediate effect on patent litigation in Europe.

The EPLA recently received a boost from senior patent judges across Europe who endorsed and encouraged these proposals. In the meantime, the Commission, having previously been opposed to the EPLA in favour of its proposal for a Community Patent, is now also supporting the EPLA, even if it regards it as an interim measure, pending the introduction of the Community Patent.

Comment

Even if the EPLA comes into being, it is still likely to be a few years before the benefits are felt. Businesses should, however, be planning ahead for such an eventuality, given that the costs of pan-European enforcement may soon substantially decrease. Those that have refrained from filing patent applications on the basis that the costs of enforcing the patent across Europe would be too high should now review that policy, and perhaps file patent applications. Also, those that have been infringing patents on the basis that the patentee lacks the resources to enforce the patent across Europe should review the viability of such an approach.

Gesellschaft für Antriebstechnik mbH & Co KG v Lamellen und Kupplungsbau Beteiligungs KG (Case C-4/03)

Roche Nederland BV and others v Frederick Primus and another (Case C-539/03)

By David Knight, partner.

E-mail: david.knight@ffw.com.

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