No 21 (May 2000/Mai 2000/Mai 2000)

“The creation of a Community Patent is a top political priority for the Commission and we will be presenting a Proposal for a Regulation on a Community Patent by July”, promised Internal Market Commissioner Frits Bolkestein to the European Patent Office (EPO) President Ingo Kober. Visiting the EPO in Munich, he added “the Proposal is a key part of the Commission's Action Plan for the Single Market and its importance in stimulating growth, competitiveness and innovation was highlighted in the Lisbon Summit. The French Presidency of the EU's Council of Ministers has pledged to make it a priority of its work programme”. There was also a long and helpful exchange of views on the EPO's progress in revising the European Patent Convention and the implications of the Community Patent for this process. Clearly it is important to ensure the best possible coherence between the two systems in order to ensure in particular legal certainty.

The creation of a Community Patent heads a series of measures outlined in a 1999 Communication (see SMN 16) designed to improve the patent system in Europe by making it simpler and cheaper to use whilst at the same time maintaining legal security. The average cost of a European patent (8 countries, duration 10 years) is currently about e 30,000 which is three to four times higher than in the US or Japan. Some 39% of the cost in Europe is taken up by translation. The new policy framework is an important means of promoting investment in innovation and strengthening European research and development. The legislation currently being drafted reflects the conclusions reached after extensive consultations with the European Parliament and a wide range of interested parties on the basis of the 1999 Communication.
Commissioner Frits Bolkestein outlined the Commission's thinking on key issues.

• Litigation System
The job of examining, granting and maintaining the Community Patent should fall to the EPO. This gives rise to potential institutional problems because the EPO is not a Community body and therefore there is no clear Community accountability of the actions of the EPO in matters relating to the Community patent. Under the EU's legal system a Community Court should be able to review a decision such as whether or not to grant a Community patent. In addition to the oversight of the decisions of the EPO, it is important also to consider how actions relating to the possible infringement or validity of a Community patent are dealt with after the patent has been granted.
In calling for the creation of a single centralised court the Commission's preferred solution to both these issues is without doubt ambitious. In particular, the proposed solution would require an amendment of the EC Treaty.
This solution has already been suggested in the Commission's additional contribution of 1st March 2000 to the Intergovernmental Conference on Institutional Reform.

This approach differs from the original idea that each Member State should designate a single national court to deal with litigation in the first instance, with appeals being heard by a centralised common court.
The change reflected increased concerns about the ability of the Courts of Justice and First Instance to handle the considerable amount of extra work that could be expected with the introduction of the Community patent. In addition, and perhaps more importantly, there were increasing demands from European industry for centralised, common courts. Business, said Mr Bolkestein, would require legal certainty if they were to trust the Community Patent to safeguard the results of investment in very costly research and development. Only a specific, centralised EC Court could fully ensure coherent interpretation of the legislation and this approach would remove the risk of a national court without any patent experience deciding on the Community-wide validity of a Community Patent - a risk likely to increase with enlargement.

• Language regime and translation
A significant proportion of the cost of a European patent is due to translation. The EPO's official working languages are English, French and German and although applicants can file in any of the other official languages of the contracting states to the European patent Convention, a translation into one of the three working languages must also be provided. Once granted, translations into the official languages of all the Member States where the patent is to have effect must also be provided under the present EPO regime. The Commission is still considering how best to reduce translation costs for the Community patent.

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